Leaving the European Safe Harbor, Sailing Towards Algorithmic Content Regulation

This article tracks the different proposals of automated content-takedown measures in the European Union. Then it briefly identifies some common issues in the context of the European safe harbor regime and the existing notice-and-takedown system. It argues that the policy trend towards algorithmic content regulation is problematic: firstly, there is only little known about the workings of algorithmic content enforcement at this point. Secondly, the legislator appears to prefer soft law and industry self-regulation over legislative intervention based on secondary law. Thirdly, the reliance on algorithmic content regulation represents a departure from the traditional intermediary liability regime.

The article covers Article 13 of the Directive on copyright in the Digital Single Market [now Article 17 of Directive 2019/790 (EU), Articles 14 and 15 of the E-Commerce Directive, Commission Recommendation (EU) 2018/334 on measures to effectively tackle illegal content online, revised Audiovisual Media Services Directive, Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online.

Keywords: content regulation, safe harbour, algorithmic enforcement

JEL Classification: K24, K42

Suggested Citation: Suggested Citation

Riis, Thomas and Schwemer, Sebastian Felix, Leaving the European Safe Harbor, Sailing Towards Algorithmic Content Regulation (December 7, 2018). Journal of Internet Law, Vol. 22, No. 7, 2019, p. 1–21., University of Copenhagen Faculty of Law Research Paper No. 2019-64, Available at SSRN: https://ssrn.com/abstract=3300159 or http://dx.doi.org/10.2139/ssrn.3300159