Sometimes one is not enough! Securing freedom of expression, encouraging private regulation, or subsidizing Internet intermediaries or all three at the same time: the dilemma of Internet intermediaries’ liability

Riding too many horses at the same time without having identified in the first place the precise direction to follow cannot bring the rider very far. Yet this is what might happen in the field of Internet intermediaries’ liability if the initial premises as well as their implications are not made clearer at the policy level and if the legal rules meant to implement them are not construed accordingly and consistently when applied in practice on a case-by-case basis. Indeed, three (and not one) rationales can be extracted from the text of the Directive on e-commerce and its provisions regarding the liability of intermediary providers: securing freedom of expression, encouraging content regulation the initiative of which should come from Internet intermediaries as well as promoting the growth of the single digital market by subsidizing private actors having a key role in the innovation process; hence, the dilemma of Internet intermediaries’ liability and the re-emergence of divergences at Member state level. In an attempt to clarify the terms of the debate, the purpose of this article is therefore to deconstruct the European system of liability exemptions for Internet intermediaries and shed light upon its fundamental assumptions and corollaries in order to appraise the appropriateness of the solutions that have recently been adopted both at supra-national and national levels.