The European Commission have recently announced a consultation into online platforms. Last month the House of Lords EU Internal Market Sub-committee invited submissions of evidence to inform the UK’s response.
Although the main focus of both consultations is competition issues, they do revisit the question of intermediary liability for third-party postings. At the moment EU law says that an intermediary – such as a website or social network – that makes available postings from third parties cannot be liable for any illegality that they are not aware of. Unfortunately the law is not clear whether simply alleging that a posting breaks the law is sufficient to remove that shield. As a result many hosts simply remove material as a matter of course when any complaint is received. That approach is less comfortable for universities and colleges, as it may conflict with their legal duty to promote free speech.
A couple of years ago, working with UCISA, we were able to get a new form of intermediary protection into UK defamation law. That allows an intermediary, if it wishes, to obtain a court ruling on the balance between the legal requirements, rather than having to make the choice itself. Our evidence to the Lords Committee cites that example and suggests that it would be helpful to include something similar, covering all forms of alleged illegality, in European law.
We also plan to make a similar response direct to the European Commission before the end of the year.