I believe one main problem when imposing liability on online content occurs when there is a hard conflict between 2 legal systems [1]. Since online content is accessible worldwide, it would be difficult to subject it to law from two strikingly different jurisdictions simultaneously. The case of LICRA vs Yahoo [2] is one which illustrates the idealogical conflict between 2 different legal systems. In this case, the French court attempted to exercise jurisdiction and apply lex loci on a US company's English site, by ordering Yahoo! to block French internet users from accessing pages auctioning Nazi memorabillia in English. While it is a criminal offense under French law, the first amendment of the US Constitution allows for such auctions inter alia under freedom of speech. Yahoo eventually brought the case to the US Court in an attempt to quash the French court order. A similar conundrum has been observed with Thailand's strict lèse-majesté provisions. The Thai government has signaled the intention to prosecute Facebook, Google and Twitter over their failure to adhere to take down notices [3]. Adhering to these notices would violate freedom of speech. The existence of such laws is understandable given the historical and cultural context. Countries went through wars and hardship which led to the enactment of those laws. Nonetheless, the global borderless nature of online content raises issues when laws from various jurisdictions contradict, leaving companies with a dilemma.
The other issue lies with the difficulty of prosecuting the actual offender. Unlike traditional media, where only journalists and the famous have a voice, online platforms give everyone a voice. When an individual decides to use that voice to transmit high commercial valued content for free (i.e. uploading the latest Hollywood blockbuster to a file sharing site), it goes "viral" quickly. Courts would be forced to take action since there is substantial copyright violation. In UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, the claimants, having been unsuccessful in blocking the site kino.to, had to resort to getting an Austrian ISP to block it's subscriber's access to the site. This is clearly not ideal since subscribers of other ISPs are still able to access the site. Furthermore, the actual offender can register new domain names to evade the ban while remaining scot free. Ideally, the actual offender should be punished, however the nature of online content makes it difficult to identify and prosecute actual offenders in such cases.
[1] Martin Husovec and Irene Roche Laguna. 2022. “Digital Services Act: A Short Primer.” pp. 11
[2] League Against Racism and Anti-Semitism (LICRA) and the French Union of Jewish Students v Yahoo! Inc and Yahoo France [2001] EBLR 1(3) 110–120 (Paris, 20 November 2000).
[3] Thailand prosecutes Facebook, Google and Twitter over posts, (BBC) https://www.bbc.com/news/technology-54296465 accessed 7 October 2023
[4] UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH: C-314/12 C-314/12, ECLI:ECLI:EU:C:2014:192, [2014] Bus LR 541, [2014] IP & T 438, [2014] All ER (D) 302 (Mar)