Safe harbours in deep waters: a new emerging liability regime for Internet intermediaries in the Digital Single Market

Abstract

Online intermediaries, often categorized as the gatekeepers of information, have become major protagonists in a variety of policy and legislative actions within the EU Digital Single Market. These initiatives endeavour to tackle illegal content online by imposing enhanced responsibility rules. The emerging scheme undertakes to nevertheless maintain the safe harbour liability exemption under the E-Commerce Directive. In this article we argue that whether that is really the case remains to be seen, in particular with a view to the proposal for a new directive on copyright in the Digital Single Market, the proposal to amend the Audio-visual Media Services Directive and the Commission’s guidance on enforcement of intellectual property rights. This article strives to understand how the new set of obligations is accommodated in the realm of existing rights and duties and whether the boundaries of the safe harbour are blurred by virtue of these recent legislative initiatives.