From ‘Notice and Takedown’ to ‘Notice and Stay Down’: Risks and Safeguards for Freedom of Expression

Since the emergence of the internet industry, policymakers around the world have introduced limited liability regimes, which provide rightholders with enforcement mechanisms to call upon an internet intermediary directly to remedy a wrongdoing to which they believe they have been subject. These mechanisms go generally under the name of notice and action (N&A). This chapter describes the most commonly encountered N&A mechanisms around the world, namely ‘notice and takedown’ (NTD), ‘notice and notice’ (NN), and ‘notice and stay down’ (NSD). The analysis of each mechanism refers to specific national implementations. As all N&A mechanisms provide for the removal or blocking of content, each mechanism also constitutes a potential interference with the right to freedom of expression. The goal of this chapter is to examine how different types of N&A mechanisms amplify the risks to free expression and what safeguards they include to prevent such risks from manifesting themselves.