Regulating the Expanding Content Moderation Universe: A European Perspective on Infrastructure Moderation

Apr 15, 2022

Christoph Busch

Much of the public and scholarly debate around content moderation focuses on user-facing platforms such as Facebook, Twitter, or YouTube. More recently, however, battles over content have shifted deeper into the internet stack, from the application layer to the infrastructure layer. As a consequence, hosting companies, domain registrars, ad networks, payment processors, and app stores are playing an increasingly important role in the battle over illegal and harmful content. Recent examples include the removal of the Parler app from iOS and Android app stores in the wake of the January 6th riot at the Capitol. Similarly, Amazon suspended Parler from its webhosting service.

Against this background, this Article explores the various contexts and shapes of content moderation at the infrastructure layer, and examines how infrastructure moderation differs from content moderation at the application layer. One important difference is that infrastructure moderation is usually not about individual content items but rather about meaningful moderation practices (or the lack thereof) at higher levels in the content moderation stack. In this sense, infrastructure moderation can be characterized as a sort of “meta-moderation.”

Building on these findings, the Article further examines how regulators react to the ongoing “infrastructural turn” and the expansion of the content moderation ecosystem. In doing so, the Article focuses on the latest regulatory developments in the European Union (EU), in particular the forthcoming Digital Services Act and the planned revision of the Code of Practice on Disinformation. The analysis shows that the EU is not only adapting the existing regulatory framework in response to the expansion of content moderation practices, but also actively promoting infrastructure moderation in the fight against disinformation.

In conclusion, the Article argues that there is an urgent need for elaborating principles tailored to the specifics of infrastructure moderation and ensuring subsidiarity, transparency, and procedural fairness. Such principles could provide guidance for providers of technical or financial infrastructure services when engaging in content moderation. They could also serve as a basis for the future development of a regulatory framework for responsible infrastructure moderation.

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