Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability
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Publication Date
2016-12-06Journal Title
Journal of Media Law
ISSN
1757-7632
Publisher
Taylor & Francis
Volume
8
Issue
2
Pages
266-301
Language
English
Type
Article
This Version
AM
Metadata
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Angelopoulos, C., & Smet, S. (2016). Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability. Journal of Media Law, 8 (2), 266-301. https://doi.org/10.1080/17577632.2016.1240957
Abstract
In recent years, Europe’s highest courts have searched for the answer to the problem of intermediary liability in the notion of a ‘fair balance’ between competing fundamental rights. At the same time, the ‘notice-and-takedown’ system, which first emerged as a solution to intermediary liability in the 1990s, has spread across the globe, transforming along the way into an assortment of ‘notice-and-action’ variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting ‘fair balance’ as a call for compromise, we propose a move away from the traditional ‘horizontal’ approach of the EU’s safe harbour regime, towards a more ‘vertical’ scheme, whereby distinct ‘actions’ are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-stay-down are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer ‘fair balance’ in this difficult area of law.
Keywords
intermediary liability, fair balance, CJEU, ECtHR, fundamental rights, notice-and-action
Identifiers
External DOI: https://doi.org/10.1080/17577632.2016.1240957
This record's URL: https://www.repository.cam.ac.uk/handle/1810/261898
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