The Role of Internet Service Providers in Enforcing Privacy Law in Europe

Due to specific characteristics of online speech: anonymity, instantaneous diffusion, massive reach, etc., regulating the internet speech through the intermediaries seems easier and more effective than pursuing directly the person communicating the illegal content. In Europe, the hosting providers might be liable for certain kind of speech made available through their services (as a result of liability allocation in Art. 14 of E-commerce Directive) while search engines operators might be obliged to control the information displayed in connection to given search terms (as a result of the recent judgment in case Google Spain v AEPD and Mario Costeja González, C-131/12).

Due to these extra obligations the internet service providers (ISPs) find themselves in the role of the final deciders in the most sensitive cases, where the balance between conflicting rights, like freedom of speech and privacy, needs to be struck. In my paper, I explore the position of the ISPs as the new actors gaining the importance in performing the task of balancing these conflicting rights. What is the expertise of the ISPs to undertake this task? What are the relevant criteria? Are these criteria compatible with the ones set forth in the case law of the European Court of Human Rights? What is the procedure applied? I will try to answer these questions by examining the terms of use of selected ISPs as well conducting the interviews with the moderators of several popular online news website.