PLATFORM GOVERNANCE AND THE DUTY TO ACT RESPONSIBLY WITHIN SYSTEMS-BASED REGULATION
The regulation of digital platforms is undergoing a significant transformation. Traditional regulatory models relied primarily on intermediary liability rules and reactive enforcement mechanisms, focusing on the removal of unlawful content after notification. More recent legislative frameworks, however, increasingly adopt systems-based approaches that require platforms to identify and manage systemic risks generated within their communication environments. This article offers a comparative analysis of three influential regulatory models: the United States’ intermediary immunity regime, the European Union’s Digital Services Act, and Canada’s proposed Online Harms Act. While these frameworks differ significantly in structure and regulatory ambition, they collectively illustrate a broader shift in platform governance—from ex post liability toward proactive risk management and structured internal decision-making.
The article argues that this transformation reshapes the institutional role of digital platforms. Rather than functioning solely as intermediaries responding to unlawful content, platforms are increasingly required to interpret regulatory standards, assess systemic risks, and implement mitigation measures within their own governance systems. As a result, regulatory scrutiny increasingly focuses not only on individual moderation decisions but also on the adequacy of the internal structures through which platforms observe, assess, and mitigate risks. Understanding this emerging regulatory architecture is therefore essential for evaluating accountability and the protection of fundamental rights in the evolving governance of digital communication systems.
Keywords: platform governance, intermediary liability, Digital Services Act, algorithmic governance, risk-based regulation.
Books and articles
Balkin, J.M. 2018. Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation. UC Davis Law Review, 51, pp. 1149–1210.
Black, J. 2005. The Emergence of Risk-Based Regulation and the New Public Risk Management. Public Law, Autumn 2005, pp. 510–546.
Klonick, K. 2018. The New Governors: The People, Rules, and Processes Governing Online Speech. Harvard Law Review, 131(6), pp. 1598–1670.
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Stephenson, R. & Rinceanu, J. 2024. Differential Diagnosis in Online Regulation: Reframing Canada’s “Systems-Based” Approach. eucrim – The European Criminal Law Associations Forum, 3, pp. 245–260. https://doi.org/10.30709/eucrim-2024-007
Reports and online sources
Rinceanu, J. n.d. NetzDG and Human Rights. Max Planck Institute for the Study of Crime, Security and Law. Available at: https://csl.mpg.de/en/projects/netzdg-and-human-rights (24. 4. 2026).
Rinceanu, J. & Stephenson, R. n.d. Rethinking Digital Media Regulation. Max Planck Institute for the Study of Crime, Security and Law. Available at: https://csl.mpg.de/en/projects/rethinking-digital-media-regulation (24. 4. 2026).
Legislation
Canada. 2024. Bill C-63: An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and related Acts, 1st Sess., 44th Parl. (first reading 26 February 2024).
European Union. 2022. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act).
Germany. 2017. Network Enforcement Act (NetzDG).
United States. 1996. Communications Decency Act, 47 U.S.C. § 230.
Cases
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003).
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).
Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019).
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. 2014).
Moody v. NetChoice, LLC (2024) Supreme Court of the United States.
NetChoice, LLC v. Moody (2022) 34 F.4th 1196 (11th Cir.).
Zeran v. America Online, Inc. (1997) 129 F.3d 327 (4th Cir.).