The ILP Lab today published a policy paper on how platforms can be obliged to prevent censorship. Student-researchers from the Lab propose a duty of care for intermediaries, such as hosting providers, to protect the fundamental rights of their subscribers and others affected by the information they host.
This “User Protection Duty” is necessary to prevent excessive removal of lawful information online. The User Protection Duty applies to the action providers take when they have become aware that information is (1) in violation of their terms of service or (2) unlawful. It does not apply to acquiring this knowledge. Thus, the User Protection Duty should be seen as an addition to the safe harbour framework.
As part of the User Protection Duty, hosting providers have to, when
responding to information on their platform: (i) differentiate their responses in relation to different types of information, (ii) adhere to a due process-requirement and protect user privacy; (iii) take the nature of the reporter into account; (iv) undertake action within a reasonable timeframe; (v) require a minimum level of proof of unlawfulness before taking action; and (v) publish a transparency report and adhere to an accountability requirement.
The report was written by Naomi Appelman, Thijs Bakker and Paula Hooyman, in partnership with Bits of Freedom. It is submitted to policy makers as part of the review of the E-commerce Directive. You can download the report here.