Trusted notifiers and the privatization of online enforcement

Online content is increasingly enforced by private parties based on private regulation. One recent trend in the takedown of unlawful online content is the emergence of models, where trusted third parties – private or public – are given privileged notification channels for flagging infringing content.Despite increasing practical importance, these arrangements have received little scholarly attention. This article explores the functioning of trusted notifier-models and how they are addressed by the European lawmaker in the context of two intermediaries, online platforms and domain name registries. Depending on intermediary, trusted notifier-models can both be seen as extension of the existing notice-and-takedown regimes and an additional voluntary expedited-enforcement layer. The author argues that these trusted notifier-models are problematic given the broad room of autonomy that the legislator is leaving to private parties. Whereas models involving public authorities are subject to general administrative law principles as well as constitutional and human rights safeguards, the framework for private regulation (i.e. without intervention of public actors) is less clear. In the field of domain names, these legitimacy issues give raise to special concern given the detached relation between domain names and website content. The paper criticizes the lack of insights into existing arrangements and calls for increased transparency. The author concludes that a legislative minimum framework is desirable.