ystemic duty of care” is a legal standard for assessing a platform’s overall system for handling harmful online content. It is not intended to define liability for any particular piece of content, or the outcome of particular litigation disputes.

The basic idea is that platforms should improve their systems for reducing online harms. This could mean following generally applicable rules established in legislation, regulations, or formal guidelines; or it could mean working with the regulator to produce and implement a platform-specific plan.

In one sense I have a lot of sympathy for this approach

In another sense, I am quite leery of the duty of care idea.

he actions platforms might take to comply with a SDOC generally fall into two categories. The first encompasses improvements to existing notice-and-takedown systems.

he second SDOC category – which is in many ways more consequential – includes obligations for platforms to proactively detect and remove or demote such content.

Proactive Monitoring Measures

The eCommerce Directive and DMCA both permit certain injunctions, even against intermediaries that are otherwise immune from damages. Here again, the platform’s existing capabilities – its capacity to know about and control user content – matter. In the U.K. Mosley v. Google case, for example, the claimant successfully argued that because Google already used technical filters to block illegal child sexual abuse material, it could potentially be compelled to filter the additional images at image in his case.

As Phillips argues, “we’re not going to solve the climate crisis if people just stop drinking water out of water bottles. But we need to start minimizing the amount of pollution that’s even put into the landscape. It’s a place to start; it’s not the place to end.”

There may not be a one-size-fits-all analogy for platforms, but “horizontalizing” can help us to understand which solutions worked in other industries, which were under-ambitious and which had unintended consequences. Comparing horizontally also reminds us that the problems of how to regulate the online world are not unique, and will prove as difficult to resolve as those of other large industries.  

The key to vertical thinking is to figure out how not to lock in incumbents or to tilt the playing field even more toward them. We often forget that small rivals do exist, and our regulation should think about how to include them. This means fostering a market that has room for ponies and stable horses as well as unicorns.

Vertical thinking has started to spread in Washington, DC. In mid January, the antitrust subcommittee in Congress held a hearing with four smaller tech firms. All of them asked for regulatory intervention. The CEO of phone accessory maker PopSockets called Amazon’s behaviour “bullying with a smile.” Amazon purportedly ignored the selling of counterfeited PopSocket products on its platform and punished PopSocket for wanting to end its relationship with Amazon. Both Republicans and Democrats seemed sympathetic to smaller firms’ travails. The question is how to adequately address vertical concerns.

Without Improved Governance, Big Firms Will Weaponize Regulation

One is the question of intellectual property. Pa

Big companies can marshall an army of lawyers, which even medium-sized firms could never afford to do.

A second aspect to consider is sliding scales of regulation.

A third aspect is burden of proof. One option is to flip the present default and make big companies prove that they are not engaging in harmful behaviour

The EU head of antitrust, Margrethe Vestager, is considering whether to turn this on its head: in cases where the European Union suspects monopolistic behaviour, major digital platforms would have to prove that users benefit from their services.

Companies would have to prove gains, rather than Brussels having to prove damages. This change would relieve pressure on smaller companies to show harms. It would put obligations on companies such as Google, which Vestager sees as so dominant that she has called them “de facto regulators” in their markets. 

A final aspect to consider is possibly mandating larger firms to open up.

In that regard, account should be taken, in particular, of the overall presentation of the product marketed by the third party, the circumstances in which a distinction is made between that mark and the sign used by that the third party, and the effort made by that third party to ensure that consumers distinguish its products from those of which it is not the trade mark owner

in part of the European Union, an EU trade mark with a reputation and a sign peacefully coexist

It cannot be excluded that the conduct which can be expected of the third party so that its use of the sign follows honest practices in industrial or commercial matters must be analysed differently in a part of the European Union where consumers have a particular affinity with the geographical word contained in the mark and the sign at issue than in a part of the European Union where that affinity is weaker.

allows the conclusion that in another part of the European Union, where that peaceful coexistence is absent, there is due cause legitimising the use of that sign.

re are notable differences in scop

inauthentic behaviour, including the suppression of millions of fake accounts and the implementation of safeguards against malicious automated activities.

more granular information is needed to better assess malicious behaviour specifically targeting the EU and the progress achieved by the platforms to counter such behaviour.”

several tools have been developed to help consumers evaluate the reliability of information sources, and to open up access to platform data for researchers.

platforms have not demonstrated much progress in developing and implementing trustworthiness indicators in collaboration with the news ecosystem”, and “some consumer empowerment tools are still not available in most EU Member States.”

f it advocates crimes against humanity; incites or advocates terrorist acts; or incites hatred, violence, discrimination or insults against a person or a group of people on grounds of origin, alleged race, religion, ethnic background, nationality, gender, sexual orientation, gender identity or disability, whether real or alleged.

obligations be imposed on the largest content-sharing platform operators, that is, any natural or legal person offering, on a professional basis, whether for remuneration or not, an online content-sharing platform, wherever it is based, used by at least 20% of the population of the French-speaking region of Belgium or the bilingual Brussels-Capital region.

iged to remove or block content notified to them that is ‘clearly illegal’ within 24 hours. T

need to put in place reporting procedures as well as processes for contesting their decisions

appoint an official contact person

half-yearly report on compliance with their obligation

Social network providers, meanwhile, are subject to proactive reporting obligations

The provider must check whether this is the case and report the content immediately, as well as provide the IP address and port number of the person responsible. The user “on whose behalf the content was stored” should be informed that the information has been passed on to the BKA, unless the BKA orders otherwise.