Regulating the Internet Through Intermediaries in Europe and the USA

This paper emphasizes the key role played by Internet Service Providers (ISPs) in the current developments in Internet content regulation. At present, no common international standards govern free speech limits on the Internet. Racist speech constitutes the most controversial issue between Europe and the US. The enforcement of domestic law online has recently led to surprising court rulings in several European countries, putting transatlantic ISPs under pressure. The paper provides a detailed account of three of these cases: the early German CompuServe case, the famous French Yahoo! case and most recently the French J’accuse! case. Both European and American legislators have endeavored to provide ISPs with “safe havens” (limitations of liability) and tentative procedural solutions like “notice and take down”. These new regimes and their likely effects on ISPs are presented and discussed. It is suggested that, despite the lack of common standards, the combination of the American and the European provisions would strongly incite transatlantic ISPs to take down racist material. This, however, also risks affecting other controversial data, otherwise subject to free speech protection. The danger of a massive scheme for private censorship is compelling