Taking fundamental rights seriously in the Digital Services Act's platform liability regime

• Giancarlo Frosio ^[1] ; Christophe Geiger ^[2]
  1. [1] Queen's University Belfast

     Queen's University Belfast

     Reino Unido

     
  2. [2] Luiss Guido Carli University
• Localización: European Law Journal, ISSN-e 1468-0386, Vol. 29, Nº. 1-2, 2023 (Ejemplar dedicado a: Special Issue:Law and common good in the digital age: Where art thou?), págs. 31-77
• Idioma: inglés
• Enlaces
  • Texto completo
• Resumen

  • This article highlights how the EU fundamental rights framework should inform the liability regimeof platforms foreseen in secondary EU law, in particular with regard to the reform of theE-commerce directive by the Digital Services Act. In order to identify all possible tensions betweenthe liability regime of platforms on the one hand, and fundamental rights on the other hand, and inorder to contribute to a well-balanced and proportionate European legal instrument, this articleaddresses these potential conflicts from the standpoint of users (those who share content and thosewho access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intri-cate landscape of online intermediary liability, interrogating how the E-Commerce Directive and theemerging Digital Services Act grapple with the delicate equilibrium between shielding intermediariesand upholding the competing rights of other stakeholders. The article then navigates in Section 3the fraught terrain of fundamental rights as articulated by the European Court of Human Rights(ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the EuropeanConvention on Human Rights and the EU Charter. This section poses an urgent inquiry: can theDSA's foundational principles reconcile these legal frameworks in a manner that fuels democracyrather than stifles it through inadvertent censorship? Section 4 then delves into the intricate rela-tionship between fundamental rights and the DSA reform. This section conducts a comprehensiveanalysis of the key provisions of the DSA, emphasising how they underscore the importance of fun-damental rights. In addition to mapping out the strengths of the framework the section also iden-tifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fun-damental rights-compliant regulatory framework for platform liability within the EU.