Originally designed to ensure the sustainable development of digital services in Europe at the dawn of the digital millennia, the eCommerce Directive formed part of a broader goal of “realizing Europe’s full e-potential” and “creating the right conditions for e-commerce and the internet to flourish”. It intended to create an environment of legal certainty that was conducive to developing online platforms and also sought to ensure a safe online platform environment for citizens of the European Community (now European Union) by creating knowledge-based liability for platforms. Its ability to achieve both of these aims has been tested by the continual evolution of online platforms, especially with the emergence of a so-called “Web 2.0”. Synonymous with this term “Web 2.0” are online platforms that push the bounds of passive mere conduit services, interacting to a sophisticated level with content. Some have argued that the eCommerce Directive failed to achieve either of the aforementioned goals, while others might allude to the reuse of the eCommerce Directive’s liability exemptions in the current proposal for a Digital Services Act as a sign of its success and longevity. 

More than 20 years after its enactment, the eCommerce Directive is due for a major reconsideration under the proposed Digital Services Act, which was published in December 2020. This proposal comes amidst a growing awareness within the European Union about the ability of online platforms, particularly those of a large scale, to spread and amplify illegal and harmful content. This has led to fundamental change in the policy positions, with a greater emphasis now placed on the goal of promoting online safety. Furthermore, while the goal of creating a conducive legal environment for the growth of these services remains constant, there is no longer the same perceived need to protect a nascent industry. As such, now is a critical time to assess the continued relevance of the eCommerce Directive’s liability exemptions in a changing digital landscape in Europe.

In his research paper on the topic "The Challenge of Online Platform Liability in the Age of Web 2.0 Pan-Atlantic Comparisons", William Field-Papuga analyzes the key developments in how the eCommerce Directive has been interpreted by the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The central concepts that will be addressed include the active vs passive/neutral requirement, knowledge-based liability exemption and specific vs general monitoring obligations.

Furthermore, the paper focuses on the commonly identified shortcomings of the eCommerce Directive, such as its lack of a detailed notice-and-action mechanism or a Good Samaritan clause. In spite of its absence, a notice-and-action system is regarded as fundamental to the practical implementation of knowledge-based liability. Many regard a Good Samaritan clause as key to incentivizing platforms in voluntary monitoring of third party content on their services, by removing the possibility of liability resulting from these activities.

The author compares the eCommerce Directive with section 230 of the Communications Decency Act in the United States, discussing the differences between two vastly different approaches to online platform liability, and the momentum for changing the legislation in the United States. While the eCommerce Directive may be regarded as a liberal compromise between the interests of platforms and users conferring certain responsibilities on platforms, the United States’ section 230, or at least the way it has evolved through the case law, is a more utilitarian instrument in favor of platforms. By this comparison it seeks to find an answer to the question which model may be regarded as preferable.

Common trends in online platform liability in both Europe and the United States are identified and the extent to which the eCommerce Directive or section 230 are capable of responding to these trends are analyzed. This includes, firstly, the shift away from online platform protectionism, or treating online platforms as a vulnerable sector in need or large scale immunity from liability. Secondly, the development of a more elaborate duty of care for platforms, which establishes an expected standard of behavior from platforms. Thirdly, the increasingly fine distinction between “specific” and “general” monitoring. Fourthly, the use of legislative carve-outs to the legislative exceptions. Fifthly, the increased skepticism toward considering online platforms as entirely neutral actors. Sixthly, the increased concern around the capacity of online platforms to restrict freedom of speech, especially through an unhindered ability to monitor content. 

The research paper also assesses the advantages and disadvantages of retaining the eCommerce Directive liability exemptions in their current form. The eCommerce Directive is still a valuable piece of legislation, due to its use of concepts that are still relevant today. It has kept the duties and responsibilities of online platforms relatively modest, and its use of a notice-and-action system means that it has aged better than its counterpart, section 230. Nonetheless, the eCommerce Directive suffers from a lack of consistent interpretations across member states, its horizontal character, as well as a lack of any positive obligations on platforms of Good Samaritan clause, are key drawbacks.

Last but not least it provides certain recommendations regarding the European Commission’s proposed Digital Services Act. It concludes that the current proposal makes significant improvements on the eCommerce Directive, but could be improved with less focus given to liability exemptions in exchange for positive obligations on platforms. 

You can read the full research paper  at the SSRN's website: "The Challenge of Online Platform Liability in the Age of Web 2.0 Pan-Atlantic Comparisons" by William Field-Papuga.