Free Expression and Internet Intermediaries: The Changing Geometry of European Regulation

Abstract

This chapter explores ongoing shifts in the geometrical patterns of speech regulation in Europe. It first sets out the regulatory framework, which comprises an array of intertwined legally binding and political standards adopted by the Council of Europe and the European Union. It then explains how this framework has given rise to, and indeed encouraged, particular geometrical patterns in European lawmaking and policymaking. Those patterns have been shaped by an awareness that the mass media have been powerful actors in public debate, and that their freedom must be safeguarded—within certain agreed limits. They also demonstrate a concern that regulation should not curb the development of new information and communications technologies and services and new markets for such technologies and services. The chapter's next focus is the recent and ongoing shift in existing regulatory patterns, which entails a significant move towards foisting greater liability and responsibility on internet intermediaries for illegal third party content hosted by them or distributed via their services or networks. There is an emergent preference for self-regulatory codes of conduct as a regulatory technique. However, as this chapter will argue, the relevant European codes of conduct are less voluntary than they may ostensibly seem as recent codes of conduct seem to have a coercive undertone.