Group items tagged

Risk assessments: First, companies could conduct risk-based assessments, as commonly happens for large-scale infrastructure projects. No engineer builds a bridge without calculating its stability. If platform companies want to be our online infrastructure, we might ask for similar levels of care as for physical infrastructure.

First, if governments used the precautionary principle to ask for risk assessments, these assessments themselves would not be foolproof and could be gamed.

Third, the precautionary principle can lock in big players and stifle innovation. If risk assessments are expensive, only the larger companies will be able to afford them.

The EU’s overall objectives are certainly well-intended. However, many concerns remain, for instance:

The DSA should tackle bad players and behaviours regardless of the platform’s size and country of origin. Having a specific regime for “very large online platforms” with additional obligations leaves the door open for rogue players to simply move to smaller digital service providers that are subject to a lighter regime.

To prevent legal uncertainty, the DSA should have a clear scope focusing on illegal content, products and services. The rules should be horizontal and principle-based, and could in a second phase be complemented with more targeted measures (legislative and non-legislative) to tackle specific concerns. 

[19] The Order of the Court will incorporate provision for liberty to apply. By this mechanism the Plaintiff, if necessary and if so advised, will be able to seek further relief from the Court if there is any recurrence of the offending publication. Of course, in such eventuality, it will be open to Facebook, acting responsibly and in accordance with the principles and themes clearly expressed in this judgment, to proactively take the necessary removal and closure steps.

[20] I refuse the Plaintiff's application for the wider form of interim injunction sought by him. This was to the effect that Facebook be required to monitor the offending webpage in order to prevent republication of the offensive material. In this respect, I prefer the argument of Mr Hopkins that such an order would lack the requisite precision, could impose a disproportionate burden and, further, would potentially require excessive supervision by the Court. See Cooperative Insurance v Argyll [1997] 3AL ER 297, pages 303 – 304, per Lord Hoffman. See also Halsbury's Laws of England, Volume 24 (Fourth Edition Reissue), paragraph 849. The propriety of granting this discrete remedy will, of course, be revisited at the substantive trial, against the backcloth of a fuller evidential matrix, which should include details of how this social networking site actually operates from day to day.

At the heart of the initiative is a plan for online platforms to “increase the proactive prevention, detection and removal of illegal content inciting hatred, violence and terrorism online.” Significantly, the ideas are presented as “guidelines and principles”. That’s because they are entirely voluntary. Except that the Commission makes it quite clear that if this totally voluntary system is not implemented by companies like Facebook and Google, it will bring in new laws to make them do it on a not-so-voluntary basis. The Commission is quite eager to see swift results from these voluntary efforts, as legislative proposals could already be on the table by May 2018.

But the worst idea, and one that appears multiple times in the latest plans, is the routine and pervasive use of upload filters.

In doing so, they have caused notable collateral damage, especially to fundamental rights.

Non-Americans should not be satisfied with this state of affairs, which basically amounts to Americans fighting with other Americans about how to run the world.

that is, the idea that people should have a say in the rules that govern their activities. The Manila Principles, moreover, place an inordinate emphasis on domestic courts to regulate platforms, even though, as my co-author Keller notes, courts lack the expertise and policy-making capacity to do so.

What all of these proposals have in common, beyond adopting the American free-speech debate as their starting point, is that they treat these large platforms as an unalterable fact of life. They consider the main question to be not whether these platforms should be making decisions for billions of non-Americans, but how they should make these decisions.

o be as effective as the ECD, the DSA should be a horizontal principle-based legislative initiative, which could be complemented by targeted measures (legislative and non-legislative) tackling specific concerns.