Monitoring and filtering: European reform or global trend?

This chapter of the Oxford Handbook of Online Intermediary Liability analyses the evolution of a trend towards the imposition of proactive monitoring obligations on intermediaries along the entire spectrum of intermediary liability subject-matters and magnifies on the reform within the European Union (EU) copyright law framework. Article 17 of the newly enacted EU Directive on the Digital Single Market has come under fire for the heightened level of liability it imposes on online services providers (OSPs) for copyright infringing content stored or transmitted by them. Based on an analysis of case-law from multiple jurisdictions and an overview of industry practice, this chapter seeks to locate the new European reform within a much wider global trend that aims to impose proactive monitoring and filtering obligations on OSPs. It argues that the impetus for the introduction of Article 17 is rooted in the ‘Internet threat’ discourse and reflects a gradual shift in the perception of OSPs from being ‘mere-conduits’ to ‘active gate-keepers’ of content uploaded and shared by users. Following an evaluation of the extent to which Article 17 diverges from the existing intermediary liability framework in the EU, the chapter concludes by analyzing its potential impact on users’ fundamental rights and freedoms, particularly in the light of its propensity to motivate wider use of automated filtering systems and algorithmic enforcement mechanisms.