Extremist and violent content, repeated copyright infringement, and child abuse images are among the threats that have led courts and policymakers to push for intermediaries to proactively monitor and remove online information. Monitoring obligations can arise from explicit statutory requirements as in the proposed EU Copyright Directive.
They can also arise when courts impose strict liability for user-generated content, effectively meaning that intermediaries must proactively review and suppress user expression in order to avoid liability this is the issue in key European Court of Human Rights rulings, discussed below. Monitoring obligations drastically tilt the balance of the intermediary liability rules toward more restriction of speech, may hinder innovation and competition by increasing the costs of operating an online platform, and may exacerbate the broadly discussed problem of over-removal of lawful content from the Internet.
Pressures to monitor have been created both by courts and by recent policy proposals. Courts in Germany see the cases of Gema v. RapidShare and Atari Europe v. RapidShare , for example, have ordered intermediaries to monitor for recurrence of particular copyrighted content. Law enforcement agencies have proposed monitoring obligations to avoid pro-terrorist and hate speech content, and copyright owners have proposed them to fight piracy online see the U.
Some of the proponents of monitoring obligations argue that existing technology already enables platforms to detect infringing material online. Examples of such technology include YouTube's rights management tool Content ID - used by creators to control the use of their copyrighted material on the platform - or hashing technology such as PhotoDNA - used by major companies to prevent the uploading of child abuse images. Proponents of monitoring obligations propose that the use these technologies should be extended to other if not all kinds of content.
Opponents point out that these technologies will inevitably silence lawful speech because they are not capable of recognizing context -- such as parody in copyright cases or news reporting in terrorism-related cases.
