The possibility for divergence in the UK’s position on content liability defences and prohibition on general monitoring

Article summary

TMT analysis: Ashley Hurst and Neil O’Sullivan of Osborne Clarke LLP consider the practical effect of reg 3(2) of the Electric Commerce (EC Directive) Regulations 2002 (the E-Commerce Regulations 2002), SI 2002/2013, on the future application of the online intermediary liability defences and the extent to which those defences and the prohibition on general monitoring obligations under Directive 200/31/EC (the EU E-Commerce Directive) may form part of retained EU law under section 4 of the European (Withdrawal) Act 2018 (EU(W)A 2018). Hurst and O’Sullivan go on to consider the UK’s position under the Online Safety Act 2023 (OSA 2023) with regard to the defences and the prohibition and the likely impact of the UK’s approach on future digital trade.