The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It reaches into basic online activities, such as linking. Departing from well-established international approaches, the Court of Justice of the European Union (CJEU) has recently decided a multitude of cases that redesigned the notion of communication to the public in the Internet, while discussing linking activities in particular. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the centre stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP)—the large majority of UGC platforms—communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive filtering—rather than ex post review of allegedly infringing content and links—is set to become the first commandment governing the Internet of tomorrow.
Published in the Computer Law & Security Review, Volume 37, July 2020, 105410