The Power of Positive Thinking: Intermediary Liability and the Effective Enjoyment of the Right to Freedom of Expression

Abstract

The Internet intermediary liability regime of Directive 2000/31/EC places hosting providers in the role of private gatekeepers. By providing an incentive in the form of a liability exemption, the EU legislature has ensured that hosting providers cooperate in the policing of online content. The current mechanism results in a situation where private entities are co-opted by the State to make decisions affecting the fundamental right to freedom of expression. According to the theory of positive obligations, States not only have to refrain from interfering with fundamental human rights, but also actively protect them, including in relations between private individuals. This paper analyses whether the doctrines of positive obligations (under the European Convention on Human Rights) and effective protection (under the Charter of Fundamental Rights of the European Union) may require the States to take additional measures to protect the right to freedom of expression from interference online. In particular, the paper analyses whether the Charter may require the EU legislature to take additional measures to ensure that the right to freedom of expression can be effectively enjoyed online, for example by introducing procedural safeguards in the legal framework regarding removal of online content.