Ansvar och yttrandefrihet – En redogörelse för yttrandefrihetsrättsliga problem med EU:s reglering av sociala medieplattformar.

Sammanfattning: The aim of this study is to examine how the European Union’s regulation of intermediary liability and the new procedural obligations imposed on media platforms relate to the protection of freedom of expression contained in the European Convention on Human Rights (ECHR) and the European Union Charter. The present paper embarks on an analysis of the foundational protection of freedom of expression and information provided by Article 10 of the ECHR and Article 11 of the EU Charter. By using a legal dogmatic method to describe current law, the paper critically assesses the construction, function, and shortcomings of intermediary liability under the E-Commerce Directive and how these persist within the framework of the Digital Services Act (DSA). The liability of media platforms for user-generated content was previously regulated in the European Union by the E-Commerce Directive and later transferred to the DSA. The regulation is based on media platforms being discharged from liability provided that certain conditions are met. These conditions relate to passivity, knowledge and expeditious action. In addition to the exemption from liability, the DSA incorporates various procedural and formal requirements for media platforms, with the overarching objective of enhancing transparency and safeguarding the fundamental rights of users. The paper shows that under the E-Commerce Directive there were a number of ambiguities regarding the liability limits and the interpretation of various elements of the regulation. Consequently, the regulatory landscape was fragmented and unpredictably applied. Concurrently, most of these ambiguities have persisted within the framework of the DSA, with the emergence of new uncertainties. Furthermore, the paper highlights that although the DSA introduces several measures aimed at preserving users' freedom of expression and information in the digital realm, there is an imminent risk of legitimate content removal. This risk is attributed to both the structure of liability exemption and certain active measures required by the DSA. Consequently, the paper raises concerns regarding the compatibility of the DSA with Article 10 ECHR and Article 11 EU Charter, mainly with regard to the requirements of legality and necessity.