Fragmentation vs. Harmonization: The Role of the TRIS Notification Procedure in EU Online Content Regulation

User-generated content platforms like Facebook, Twitter, and YouTube are increasingly acknowledged as important political actors, creating private regulatory standards for online behaviour and action that can have a significant impact on social, cultural, and political life (Van Dijck et al., 2018). Unsurprisingly, the processes through which these platforms adjudicate, sort, and filter online content have drawn growing attention from both the European Commission and from EU member states in the past five years, leading to a number of regulatory proposals seeking to shape company practices on a host of issues ranging from hate speech and disinformation to violent extremism (Suzor, 2019). These proposals — and diverging positions on the appropriate normative and legal frameworks for ‘platform governance’ (Gorwa, 2019) — have led to tensions between a Commission seeking to maintain harmonized regulatory standards across the internal market (Bradford, 2020) and national governments seeking to exert control over online activity in their jurisdictions (Ketteman, 2020). This paper discusses the role of an under-researched legal mechanism, the EU Technical Regulation Information System notification procedure, in European content regulation. Through an analysis of policy documents obtained via freedom of information requests, the paper explores the different reactions from the Commission to three very similar regulatory proposals — the German NetzDG (2017), the French Loi Avia (2020), and the Austrian KoPl-G (2020) — arguing that an institutional framework designed for harmonization has, through a process of evolution and political contestation, unexpectedly created path dependencies with significant impacts for the current debates over intermediary liability reform at the EU level. Linking European Politics literature to scholarship on intermediary liability and technology policy, the paper shows that three political factors (domestic politics, member state power resources, and evolving Commission strategies) currently missing from the current work on platform governance and platform power.