The Jurisdictional Challenge Answered—Enforcement through Gatekeepers on the Internet

Abstract

Chapter 3 examines the consequences of the Jurisdictional Challenge of the internet for the enforcement of public law, such as content regulation and criminal law relating to illegal content. Internet applications such as websites, mobile apps, peer-to-peer file sharing, cyberlockers, and social media have enabled the remote sharing of illegal content and criminal interaction between people globally and across national borders. This global spread of illegal activities creates challenges for the application and enforcement of national law, as perpetrators may be remote from enforcement authorities, and content is shared instantly. The imposition of liability on intermediaries such as social media platforms as gatekeepers for law enforcement as a way of overcoming the Jurisdictional Challenge is critically discussed. Enforcement takes place against entities facilitating or enabling dissemination of illegal content or the illegal activities instead of the primary perpetrators. This strategy is used to overcome the “out of reach” problem caused by decentralization and remote targeting. This chapter critically analyses in detail the provisions on intermediary liability/immunity and recent proposals to impose a duty of care, particularly in respect of child sexual exploitation and abuse, and terrorism-related materials. It examines the German Network Law Enforcement Act and other countries’ similar initiatives (including the UK White Paper “Online Harms”) and the provisions in the revised EU AVMS Directive. It critically examines regulation by platforms themselves and the human rights implications of coregulation. Both notice and take-down regimes and blocking of internet access to material are covered, and different initiatives evaluated and compared.