The Prohibition of General Monitoring Obligation for Video-Sharing Platforms under Article 15 of the E-Commerce Directive in light of Recent Developments: Is it still necessary to maintain it?

Abstract

The absence of a uniform notion of general monitoring, introduced under the E-Commerce Directive 2000/31/EC, leads to different interpretations of the scope and the role of the prohibition on general monitoring obligations by the EU legislators and by the Court of Justice of the European Union. While the Court of Justice of the European Union balances freedom of expression and information, right to privacy and protection of personal data and right to property on the same level of importance in determining the scope of general monitoring, this article shows that special protections attributed to the interests that are fundamental to human life and to our modern democracies under primary EU laws are ignored. Unfortunately, this further deepens the segregation in the different interpretations of general monitoring and creates an inconsistency among the recent EU legislations. The article notes that this inconsistency eventually causes a legal uncertainty for the video-sharing platforms regarding their content moderation practices and thus turning the prohibition into an empty shell. At the current stage, the article reveals the need for a clear distinction for VSPs between vertically applicable content moderation measures arising from content or sector specific regulations and the prohibition on general monitoring obligations. However, for future regulation in the EU, it is suggested to find an alternative solution to online monitoring which can suppress the impact of online illegal activities without restricting fundamental rights of individuals.