Law for the Excluded Middle

Most of the headaches of the digital world seem to have one common denominator: there is someone in the middle who could do something but doesn’t. Whether it’s fake news, terrorism content, revenge porn, abuse of workers’ rights, copyright infringement, cyber-attacks… you name it: the list goes on (and ought to be familiar by now).

The answer is often to address such issues by adding more: privacy regulation via authorities, educating the users to do better, via the police and courts – but rarely by demanding action from the middleman. (That would “break the internet”.)

Does it have to be like that? That is a rhetorical question, the answer is “no, it doesn’t have to be like that”. Take my favourite example: video games. Some games may be controversial and rely on freedom of expression, but instead of saying “any restriction would break the internet”, games have age-recommendations and parental controls in answer to the concerned. This kind of self-regulation (with independent oversight boards) is common in advertising, press and many other places. I have written more about that here.

Earlier this month, Tobias Schmidt – chair of ERGA (the European audiovisual media regulators) – said to Politico that the EU’s suggested content moderation rules are “toothless” and sanctions are needed (rather than sending letters). One might add that if sanctions are fines, they may be just as toothless, as some of the platforms see fines more like the cost of doing business. So much for “we comply with local regulation”. (Really? You want a medal for not breaking the law?)

The idea that the intermediary should take action, not because it does anything wrong but because it can, is everywhere: hotels must act against trafficking, banks have strict rules on money-laundering, printshops are not allowed to make copyright infringing prints, transport companies must act on suspicion of illegal goods etc etc. Even car makers try to stop their vehicles from ending up in the hands of terrorists.

In the digital world, exemption from liability of what users do with a service is the norm. That has benefits for sure, easy access to distribution for all users. However, it appears that the European policy-makers are looking at the middlemen to help fix the internet. In the Digital Services Act, “due diligence” procedures such as an official point of contact, transparency reporting, codes of conduct, reporting criminal offences and so on (more due diligence for bigger players – with great powers…). Sounds great, but also begs a question: why not connect those due diligence obligations to the exemption from liability? That way, the EU Commission could fix the internet without breaking it. Have the cake AND eat it! Get all the juicy stuff – innovation, growth, digital champions – without the headaches and nosebleeds of fake news and revenge porn.

Surely the COMM has thought of that? If no, happy to send a link to this post. If yes, why not connect the dots?