Extremist and violent content, repeated copyright infringement, and child abuse images are among the threats that have led courts and policymakers to push for intermediaries to proactively monitor and remove online information. Monitoring obligations can arise from explicit statutory requirements (as in the proposed EU Copyright Directive). They can also arise when courts impose strict liability for user-generated content, effectively meaning that intermediaries must proactively review and suppress user expression in order to avoid liability (this is the issue in key European Court of Human Rights rulings, discussed below).
Monitoring obligations drastically tilt the balance of the intermediary liability rules toward more restriction of speech, may hinder innovation and competition by increasing the costs of operating an online platform, and may exacerbate the broadly discussed problem of over-removal of lawful content from the Internet.
Pressures to monitor have been created both by courts and by recent policy proposals. Courts in Germany (see the cases of Gema v. RapidShare and Atari Europe v. RapidShare), for example, have ordered intermediaries to monitor for recurrence of particular copyrighted content. Law enforcement agencies have proposed monitoring obligations to avoid pro-terrorist and hate speech content, and copyright owners have proposed them to fight piracy online (see the U.S. Copyright Office - Section 512 Study: Notice and Request for Public Comment and the European Commission Proposal for a Directive on Copyright in the Digital Single Market).
Some of the proponents of monitoring obligations argue that existing technology already enables platforms to detect infringing material online. Examples of such technology include YouTube's rights management tool (Content ID) - used by creators to control the use of their copyrighted material on the platform - or hashing technology such as PhotoDNA - used by major companies to prevent the uploading of child abuse images. Proponents of monitoring obligations propose that the use these technologies should be extended to other (if not all) kinds of content. Opponents point out that these technologies will inevitably silence lawful speech because they are not capable of recognizing context -- such as parody in copyright cases or news reporting in terrorism-related cases.
In the European Court of Human Rights (ECHR), the cases Delfi v. Estonia and MTE v. Hungary explored tensions between intermediary monitoring requirements and Internet users’ rights to seek and impart information. The two cases addressed the liability of news portals for comments made by their users, reaching different results. In Delfi v. Estonia the upper chamber of the ECHR decided that the news portal Delfi could be held liable for hate speech (threats and anti-semitic content) posted to their comments section. Although the court emphasized that a different result could be reached if the defendant were not a news provider, the decision may push both news portals and other hosts to entirely shut their comments section, bear the costs of monitoring the content posted, or face the risk of liability for their users' wrongdoings. In MTE v. Hungary, the lower chamber of the Court went in a different direction. It determined that the defamatory speech at issue in the case was not dangerous enough to justify a monitoring obligation, given the risks it would pose to users' freedom of expression. High courts in Argentina and India have also reached key rulings on the topic. Both rejected monitoring obligations on grounds of Internet users' speech and information rights -- though pending cases in India mean the legal landscape for monitoring there may continue to evolve.
Expanding pressures for intermediaries to assume monitoring obligations have been heavily criticized by public interest groups such as EFF and EDRi. Their concerns include both the immediate impact on expression rights and the apparent move towards privatized enforcement without transparency and the appropriate safeguards for speakers and the general public.
Below, you can find entries that concern monitoring or filtering obligations for Online Service Providers in the WILMap database. Please let us know if you identify any important development that should be included.
For more information on monitoring obligations, see:
- From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe, by Giancarlo Frosio.
- The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform, by Martin Senftleben, Christina Angelopoulos, Giancarlo Frosio, Valentina Moscon, Miquel Peguera, and Ole Andreas Rognstad.