Intermediary liability and platforms

The European Commission has now published its conclusions from the consultation on platforms it carried our earlier this year. This included notice-and-takedown: an issue we've been working on for many years. When universities and colleges receive an allegation that information on their website breaks the law, they're forced to choose between supporting free speech (a legal duty) or running the risk that the allegation will turn out to be true and a court will find them liable for continued publication. UK defamation law removed this dilemma in 2013 by allowing website hosts to seek a response from the author of the information and, if the dispute can't be resolved, wait for a court to confirm whether the material should be removed or left.

Unfortunately wider EU law doesn't allow that approach, and the current consultation seems to have produced no more than the possibility of further "consideration" in future of whether change might be needed. There are a couple of helpful points in the response, though. First, strong support for maintaining the current liability shield for information that websites aren't aware of (a recent Estonian case had cast doubt on that). And - again something that the UK Defamation Act addressed - a recognition that websites' attempts to remove inappropriate content shouldn't automatically lose that protection.

On the main subject of the consultation there now seems to be a feeling that better enforcement of existing laws – including data protection, competition and consumer protection – may be sufficient to deal with most problems relating to on-line platforms. Where there are genuinely new problems, sector-specific legislation should be used, rather than an all-encompassing "platform law". Since it's still not clear which on-line services would have fallen within such a law, that sounds like a much better way to avoid legal confusion.