The liability regime in the European Union for online intermediaries have for a long time been built on the assumption that these intermediaries are neutral conveyors of information and should therefore not be liable for the content posted by third parties. With the emergence of online platforms as the new dominant online intermediary, this assumption no longer corresponds to reality. The platforms moderate the content that is posted on the platform and applies a business model where all traffic to the platform – even illegal – is good traffic. This development has been troublesome for intellectual property rights holders, considering that online platforms have displayed to be a breeding ground for illegal distribution of copyrighted works and for the sale of counterfeited goods. In the view of this, a debate on platform liability and responsibility have been on the rise and resulted in new EU-legislation. In this essay, I analyse the current and the upcoming liability regime for Online platforms in the event of user generated intellectual property infringements. I discuss enforcement options in the realm of liability for intellectual property rights holders and compare the options between trademark holders and copyright holders. In addition, I also discuss if the current and upcoming liability regime strikes a fair balance between the relevant stakeholders. My analysis will display that the regulation and discussion around platform liability and enforcement of intellectual property rights, have changed from being about claiming damages and injunctions, to be about content moderation, notice and action mechanisms and automated filtering tools. This has in some aspects changed online platforms from online intermediaries to Internet police and put enforcement and fundamental rights in the hands of algorithmic enforcement.

Online platforms play a crucial role for the right to freedom of expression. Due to the increasing spread of illegal content online, regulatory measures have been taken on an EU-level to curb the dissemination of illegal and harmful content online. Trapped in a dilemma, online platforms grapple with the challenge of ensuring a safer online environment by removing illegal content and taking proactive measures, meanwhile avoiding excessive moderation.  Against this background, this essay explores online platforms' liability for third-party content under the e-commerce directive and the Digital Services Act (DSA). Furthermore, the essay examines how the DSA affects users' ability to file complaints against content moderation by online platforms, analyzing whether the DSA enhances clarity in the liability framework compared to the e-commerce directive and evaluating its effectiveness in achieving its intended purpose. In broad, the analysis compares the legal framework in relation to the impact on users’ freedom of expression.  The DSA has retained broad liability exemption for online platforms in relation to illegal material published by a third-party, causing online platforms to avoid searching for harmful content. However, the inclusion of a "good samaritan" clause in Article 7 of the DSA can resolve the tension between proactive measures on the one hand, while retaining the liability exemption on the other hand. In addition, the DSA brings significant changes and introduces increased transparency and due diligence obligations which complements the liability framework.  Regarding users' ability to challenge content moderation, the essay notes that the DSA introduces mainly three options for users: imposing online platforms to provide statement of reasons when imposing restrictions, (Article 17), internal complaints systems (Article 20), and external dispute resolution bodies (Article 21). While these avenues offer users opportunities to challenge content moderation made by platforms, the analysis shows that the system has some shortcomings, including potential cost and time burdens for online platforms.  The essay concludes that the DSA introduces nuances to the liability framework and provides avenues for users to challenge content moderation to a higher degree. The effectiveness of the provisions in achieving legal clarity and safeguarding fundamental rights will depend on practical implementation and further regulatory developments such as precedents from the Court of Justice of the European Union.