To what extent can online service providers adopt voluntary content moderation measures without losing their immunity shields? A comparative analysis of online service providers’ liabilities in the European Union and the United States

Abstract

Immunity for engaging in voluntary content moderation measures is a new addition to the European Union legal framework for intermediaries’ liabilities. Article 7 of the Digital Services Act guarantees eligibility for immunity to online service providers undertaking good faith voluntary own-initiative investigations similar to the Good Samaritan provision originating in Section 230 of the US Communication Decency Act. The latter has been in place for more than two decades and the breadth of US case law sheds some insights into the strengths and weakness of this provision. This research paper aims to identify similarities and differences between the rules that protect online Good Samaritans in both jurisdictions and determine whether the rules effectively fight illegal content online without undermining the immunity of online service providers. It does so by looking at the relevant jurisprudence and the existing legal provisions on liability exemptions for voluntary content moderation in both jurisdictions. It further examines the proposals to amend Section 230 in the US which are a symptom of the dissatisfaction surrounding the broad immunity granted to online service providers and the perceived, occasionally misconstrued, shortcomings of the provision. Additionally, they provide indications as to whether limiting the immunity shields to online service providers engaging in voluntary content moderation measures aligns with the standards of good faith and diligence set forth in the Digital Services Act.