Responsabilità delle piattaforme online, oscuramento di siti web e libertà di espressione nella giurisprudenza della Corte europea dei diritti dell'uomo.

Abstract

This paper, after having brought attention to the main source that inspired the Internet intermediaries’ exemption in the Electronic Commerce Directive, namely section 512 of the U.S. Digital Millennium Copyright Act, focuses on the growing tendency in Europe to limit the benefit of protection under the hosting exemption from liability. This trend, at the EU level, includes both holding intermediaries liable for content circulated by their users on their platforms and seeking injunctions (especially in the fields of Intellectual Property protection) requiring ISPs to block (or attempt to block) access to infringing websites. These developments are also confirmed by the case law of the ECHR on article 10 of the European Convention on Human Rights. The article then presents an analysis of two sets of judgments of the ECHR relating to the issue of liability of intermediaries for third-party content and to the feasibility of blanket bans of entire websites. In the first group of cases the main question put before the Court was the possibility for a website operator to be held liable for the delayed removal of illegal comments of internet users even in the absence of a proper notice that the material was illegal. In the second group of cases, the main question put before the Court was whether the blocking of popular platforms such as Google Sites, YouTube and Myspace constituted a violation of the Convention rights of users. The essay specifically aims to investigate the extent to which this case law could be considered to be in harmony with the Electronic Commerce Directive or if it should be seen as a departure from the principles laid down in that directive.