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Editor’s Note: A Dialogue on the Role of Online Intermediaries
Editor’s Note: A Dialogue on the Role of Online Intermediaries
Edited by Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law Online Publication Date: May 2020
Editor’s Note: A Dialogue on the Role of
Online
Intermediaries
INpursuit of an answer to the online intermediary liability conundrum, The Oxford Handbook of Online Intermediary Liability has gathered together multiple voices that have contributed greatly to this emerging debate in the last few years. I have encountered or came to know about most of my co-authors a few years ago at the time of my residence at the Stanford Center for Internet and Society where I served as the first Intermediary Liability Fellow. The idea for this Handbook was the result of other projects that we have run together, including the World Intermediary Liability Map, and the need to crystallize an emerging field of research. This field of research has grown exponentially since this Handbook was first envisioned. Online intermediary liability has now become a pervasive issue on the agenda of governments, courts, civil society, and academia and in the last few years legislation, case law, and initiatives dealing with the liability of online intermediaries have followed at an astounding pace.
The role of online service providers (OSPs) is unprecedented in relation to their capacity to influence users’ interactions in the infosphere.1 Online intermediaries mediate human life in a virtual brave new world that reflects and augments our physical realm. ‘Internet intermediaries are crucial for how most people use the Internet,’ Dan Jerker Svantesson noted.2 Ubiquitous platforms dictate our daily routine: searching for information on Google, getting a taxi on Uber, shopping on Amazon Fresh, making payments via PayPal, collaborating on Google Docs, storing documents on Dropbox, taking up employment through Upwork, discussing trendy topics on Twitter, sharing videos on YouTube, or posting pictures on Instagram. In particular, most creative expression today takes place over communications networks owned by private companies. The decentralized, global nature of the internet means that almost anyone can present an (p. x) idea, make an assertion, post a photograph, or push to the world numerous other types of content. Billions of people possess multiple connected portable devices. People communicate their experiences on the go through multimedia social networking services (e.g. Facebook, Instagram), on
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(p. ix)
line file repositories (e.g. Flickr, Dropbox, Google Photos), and various kinds of videosharing platforms (e.g. YouTube, Vimeo, Dailymotion). According to Danny Friedmann, ‘in China, en route to become the biggest economy in the world, at the end of 2017, it was estimated that more than half of the population (772 million people) had access to the internet. Goods are traded between businesses and consumers, between consumers, and between businesses, at enormous online market platforms, such as those of the Alibaba Group’.
The ‘information society’ with its 2.5 quintillion bytes of data created each day3 has slowly morphed into the ‘platform society’. But there is more to it. Perhaps unnoticed, our society has transformed into an ‘intermediated society’. Platforms and OSPs filter our networked life, shape our experiences, define our memories—and even remind us of a (selected) few of them. ‘They contribute to inform the space of opportunities in which individuals and societies can flourish and evolve,’ Mariarosaria Taddeo stresses, ‘and eventually impact how we understand reality and how we interact with each other and with the environment’. The decisions made by these platforms increasingly shape contemporary life. ‘As leading designers of online environments, OSPs make decisions that impact private and public lives, social welfare and individual wellbeing.’
For Christina Angelopoulos, ‘the prevalence of intermediation in modern electronic communications makes [intermediary liability] an increasingly significant aspect of an increasing wide array of different areas of information law’. Eleonora Rosati adds that ‘in this sense Recital 59 of the Information Society Directive, which stresses how, in a context of this kind, intermediaries may be indeed best placed to bring infringements to an end, helps understand the need for intermediaries’ involvement in the enforcement process’. Also Richard Arnold develops this point by noting that ‘online exploitation makes infringement of IPRs easy, but makes enforcement of IPRs against the sources of such infringements difficult (eg because of jurisdictional issues)’, therefore ‘IPR owners increasingly find that it is more practical and effective to target online intermediaries both with claims for direct and accessory liability and with claims for intermediary liability’. Frederick Mostert recognizes that ‘intermediary liability for online service providers has become relevant because of an attempt … to deal with the volume and velocity of illegal online activities by Bad Actors’. But, Mostert adds, this strategy is suboptimal: ‘culpa is rarely present at the platform end-point and intermediaries are virtually in all cases not the source of the problem’. However, ‘dealing with the source of the problem is exacerbated by the anonymity issue in the online world, making it very difficult to track and trace the identity of the Bad Actors themselves’. Hence, ‘the last resort efforts to try and stop the illegal activities at the end-point—the platform level’.
(p. xi) Therefore, whether and when access providers and communications platforms like Google, Twitter, and Facebook are liable for their users’ online activities is a key factor that affects innovation and fundamental rights. Transaction costs deriving from their liability shape platforms’ decisions and policies, algorithms’ development, and, finally, the architecture of the infosphere. Kylie Pappalardo and Nicolas Suzor clarify that ‘intermediary liability matters because the rules of intermediary liability structure the internet.
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What internet users can and cannot see and do is largely dictated by the laws that apply to the online service providers that mediate their experience’. According to Miquel Peguera, ‘the way business models are conceived and developed closely hinges on the legal framework that governs their duties and that determines the conditions under which they may or may not be sheltered from liability’, so that ‘intermediary liability ends up shaping the availability of new digital services and affects citizens’ daily lives in multiple ways’. Jaani Riordan reminds of the tension that lies in setting up liability against online intermediaries:
If intermediary liability rules are too strict, they risk stifling new and useful services and restricting market participation to the largest platforms—those best able to afford lawyers, compliance costs, and political lobbying. At the other extreme, rules which immunise intermediaries against any need to act could make it impossible or impracticable for claimants to enforce their rights, encouraging the spread of disinformation and other harmful material.
On one side, as Marco Ricolfi suggests, ‘the adoption of intermediary liability exacerbates the difficulties in preserving freedom of innovation [and], in terms of competition policy, it risks creating barriers to newcomers’. On the other side, Eduardo Bertoni stresses that ‘depending on the regulation that could be enacted, the impact on fundamental rights might be positive or negative’. For Peguera, the way in which we arrange liability has ‘an immediate effect on the exercise of fundamental rights on the Internet, particularly in terms of freedom to access and impart information and in terms of privacy and data protection’. According to Kristofer Erickson and Martin Kretschmer, ‘the legal regime of notice-and-takedown which has been in place for 20 years was conceived as a means of balancing legitimate interests of media rightholders, platform innovators and online users’. However, Christophe Geiger and Elena Izyumenko add that:
once intermediaries are asked to do more in their new role of active … enforcers, impartial enforcement can be at risk, raising the questions with regards to compliance, among others, with the fundamental rights of both Internet users and intermediaries themselves. This situation entails a serious risk of intermediary being ‘overzealous’ in order to avoid liability and to block access to content that is made available in a perfectly legal manner.
OSPs are subjected to increasing pressure by governments and interest groups which are seeking to control online content by making use of their technical capacities. In this (p. xii) regard, Niva Elkin-Koren and Maayan Perel highlight that ‘they offer a natural point of control for monitoring, filtering, blocking, and disabling access to content, which makes them ideal partners for performing civil and criminal enforcement’. As Emily Laidlaw develops:
Intermediaries occupy a critical regulatory role, because they have the capacity to control the flow of information online in a way that others, including states, cannot. Thus, significant energy is devoted by lawmakers to strategizing how to cre
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ate laws that capitalize on intermediaries’ capacity to regulate to solve many problems posed by internet use.
However, ‘intermediary obligations should not be confused with those of states’. This is hardly the case nowadays. For example, as Nicolo Zingales notes, ‘intermediary liability of OSPs is particularly relevant in the African continent because of the increasing pressure on intermediaries to fulfil broad and open-ended public policy mandates, and potentially affecting both technological progress and the creation of local content’. Multiple jurisdictions follow the same path. As Bertrand de La Chapelle and Paul Fehlinger argue, the intermediary liability debates are exacerbated by a looming risk of ‘a legal arms race, in which states resort to an extensive interpretation of territoriality criteria over crossborder data flows and services’.
In an ‘invisible handshake’ between public and private parties, faced with semiotic regulation on an unprecedented scale, enforcement looks once again for an ‘answer to the machine in the machine’.4 Sophisticated algorithms and company policies enable and constrain our actions. These algorithms take decisions reflecting policy’s assumptions and interests that have very significant consequences for society at large, yet there is limited understanding of these processes. This is critical, Ben Wagner notes, as ‘understanding the mechanism of implementation is key to understanding the nature of speech that is enabled by it’. Sergei Hovyadinov notes how ‘the framework of intermediary liability established in the EU and the US 15–20 years ago is not sufficient anymore to fight illegal content, especially terrorist, which because of the volume and the speed of its dissemination calls for a more proactive approach, with elements of automation and proactive monitoring’. ‘Intermediary liability’, Hovyadinov continues, ‘is thus shifting from a reactive “notice-and-take down” regime to “intermediary accountability” [as Martin Husovec termed it] based on new expectations from governments and civil society as to the role online platforms should proactively perform’. Christophe Geiger and Elena Izyumenko highlight the ‘danger that intermediaries have recourse to automated systems, leading to a situation where machines and algorithms would become the decision-makers of what is available or not on the Internet’. Of course, ‘this privatisation of justice is highly problematic in a democratic society, in particular with regard to the constitutional legal framework’. Therefore, Niva Elkin-Koren and Maayan Perel conclude that (p. xiii) ‘with the rise of algorithmic enforcement, data driven economy, centralized architecture and market concentration, the new regulatory powers of online platforms are challenging the rule of law’.
To continue this dialogue on the role of online intermediaries in modern society, this Handbook will present multiple scholarly perspectives on the major themes in intermediary liability and platform governance.
The Handbook discusses fundamental legal issues in online intermediary liability, while also describing advances in intermediary liability theory and identifying recent policy trends. PartIfeatures an introductory chapter that will serve as a blueprint for the consistent development of other chapters as it sets out in advance the most relevant trends according to which the structure of the book has been generated. PartIIprovides a taxon
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
omy of internet platforms, a general discussion of a possible basis for liability, and a review of remedies. In addition, PartIIintroduces the discussion of the fundamental rights implications of intermediary liability and considers the ethical ramifications of the role of online intermediaries. PartIIIpresents a jurisdictional overview of intermediary liability safe harbours and highlights systemic fragmentation. In this respect, PartIIIwill also focus on enhanced responsibilities that multiple jurisdictions incresingly impose on online intermediaries. PartIVprovides an overview of domain-specific solutions, including intermediate liability for copyright, trade mark, unfair competition, and privacy infringement, together with internet platforms’ speech-related obligations and liabilities. PartVreviews intermediary liability enforcement strategies by focusing on emerging trends, including proactive monitoring obligations, blocking orders, and the emergence of administrative enforcement of online infringement. PartVIdiscusses an additional core emerging trend in intermediary liability enforcement: voluntary measures and private enforcement of allegedly illegal content online are shifting the discourse from intermediary liability to intermediary responsibility or accountability. International private law issues are addressed in PartVIIwith special emphasis on extraterritorial enforcement of intermediaries’ obligations.
Finally, I would like to express my gratitude to my co-authors for completing this truly ‘monumental’ study that contributes fundamentally to research in the field. Special thanks also go to the team at Oxford University Press for giving us the opportunity to publish this volume, helping to define the trajectory that it has finally taken, and for all the editorial support. I would also like to thank my wife, Hong, and my parents, Nuccia and Clemente, for their continuous support. Nothing would be possible without the happiness that my family gives to me.
June 2019
Notes:
(1) See Luciano Floridi, The Fourth Revolution—How the Infosphere is Reshaping Human Reality (OUP 2014) (arguing that after the Copernican, Darwinian, and Freudian revolutions, humans are once again forced to rethink their role as they must now interact with virtual entities and agent in a wholly new medium, the infosphere).
(2) The following considerations are the result of reflections collected via email exchange with my co-authors in the last few months. The quoted passages are taken from this exchange, which is on file with the author.
(3) See Domo, ‘Data Never Sleeps 5.0’ <https://www.domo.com/learn/data-neversleeps-5>. Note that all hyperlinks in the Handbook were last accessed on 10 June 2019.
(4) Charles Clark, ‘The Answer to the Machine is in the Machine’ in Bernt Hugenholtz (ed.), The Future of Copyright in a Digital Environment (Kluwer Law Int’l 1999) 139 (dis
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Notes on Contributors
Edited by Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law Online Publication Date: May 2020
Notes on Contributors
Christina Angelopoulos
is a Lecturer in Intellectual Property Law at the University of Cambridge and a member of the Centre for Intellectual Property and Information Law (CIPIL). Email: cja58@cam.ac.uk
Richard Arnold
is a Judge of the Court of Appeal of England and Wales.
Eduardo Bertoni
is the Director of the Access to Public Information Agency in Argentina, Director of the Post-graduated Program on Data Protection at Buenos Aires University School of Law, Argentina, and Global Clinical Professor at New York University School of Law, New York. Email:eduardo.bertoni@nyu.eduandeduardobertoni@derecho.uba.ar.
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is the Allan G. Shepard Professor of Law at the University of Idaho College of Law, an Affiliate Scholar at the Stanford Law School Center for Internet and Society (CIS), and an Affiliated Fellow at the Yale Law School Information Society Project (ISP). Email:annemarie.bridy@gmail.com
Bertrand de La Chapelle
is the Executive Director and Co-founder of the global multistakeholder organization Internet & Jurisdiction Policy Network. Email: bdelachapelle@internetjurisdiction.net.
Alessandro Cogo
is Associate Professor at the University of Turin Law School and Director of the Master of Laws in Intellectual Property jointly organized by the World Intellectual Property Organization and the Turin University. Email:alessandroenrico.cogo@unito.it.
Graeme Dinwoodie
is the Global Professor of Intellectual Property Law at Chicago-Kent College of Law. Email:gdinwoodie@kentlaw.iit.edu.
Niva Elkin-Koren
is a Professor of Law at the University of Haifa, Faculty of Law and a Faculty Associate at the Berkman Klein Center at Harvard University. She is the Founding Director of the Haifa Center for Law & Technology (HCLT), and a Co-director of the Center for Cyber, Law and Policy. Email:elkiniva@law.haifa.ac.il.
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Kristofer Erickson
is Associate Professor in Media and Communication at the University of Leeds. Email: K.Erickson@leeds.ac.uk
Paul Fehlinger
is the Deputy Executive Director and Co-founder of the multistakeholder organization Internet & Jurisdiction Policy Network. Email:fehlinger@internetjurisdiction.net
(p. xvi) Danny Friedmann
is Visiting Assistant Professor of Law, Peking University School of Transnational Law in Shenzhen. Email:ipdragon@gmail.com
Giancarlo Frosio
is an Associate Professor at the Center for International Intellectual Property Studies at Strasbourg University, a Fellow at Stanford Law School Center for Internet and Society, and Faculty Associate of the NEXA Center in Turin. Email:gcfrosio@ceipi.edu.
Christophe Geiger
is Professor of Law and Director of the Research Department of the Centre for International Intellectual Property Studies (CEIPI) at Strasbourg University. Email: christophe.geiger@ceipi.edu.
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is a Professor of Law at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. Email:mgeist@pobox.com.
Eric Goldman
is a Professor of Law at Santa Clara University School of Law, where he is also Director of the school’s High Tech Law Institute. Email:egoldman@gmail.com.
Reto M. Hilty
is Managing Director at the Max Planck Institute for Innovation and Competition in Munich and Full Professor (ad personam) at the University of Zurich. Email: hilty@ip.mpg.de
Sergei Hovyadinov
is a JSD candidate at Stanford Law School. Email:sergeih@stanford.edu
Martin Husovec
is Assistant Professor at the University of Tilburg (Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center) and Affiliate Scholar at Stanford Law School Center for Internet and Society. Email:martin@husovec.eu.
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is a Researcher and a PhD Candidate at the Center for International Intellectual Property Studies (CEIPI), University of Strasbourg. Email: elena.izyumenko@ceipi.edu.
Martin Kretschmer
is Professor of Intellectual Property Law at the School of Law, University of Glasgow and Director of CREATe, the UK Copyright and Creative Economy Centre. Email: Martin.Kretschmer@glasgow.ac.uk
Aleksandra Kuczerawy
is a Postdoctoral Researcher at the Katholieke Universiteit (KU) Leuven’s Centre for IT & IP Law. Email:aleksandra.kuczerawy@kuleuven.be
Emily Laidlaw
is Associate Professor, Faculty of Law, University of Calgary. Email: emily.laidlaw@ucalgary.ca.
Juan Carlos Lara Gálvez
is the Research and Public Policy Director at Derechos Digitales—América Latina, based in Santiago de Chile. Email:juancarlos@derechosdigitales.org. (p. xvii) Jack Lerner
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is a Clinical Professor of Law at the University of California, Irvine School of Law and Director of the UCI Intellectual Property, Arts, and Technology Clinic. Email: jlerner@law.uci.edu.
Tarlach McGonagle
is a Senior Lecturer/Researcher at IViR, University of Amsterdam and Professor of Media Law & Information Society at Leiden Law School. Email:T.McGonagle@uva.nl
Luiz Fernando Marrey Moncau
is a Non-Residential Fellow at the Stanford Center for Internet and Society and a PhD from Pontifícia Universidade Católica of Rio de Janeiro. Email: mailto:luizfmmoncau@gmail.com
Sunimal Mendis
is a Postdoctoral Researcher at the Center for International Intellectual Property Studies (CEIPI) at Strasbourg University. Email:mendis@ceipi.edu
Maria Lillà Montagnani
is an Associate Professor of Commercial Law at Bocconi University in Milan. Email: lilla.montagnani@unibocconi.it.
Valentina Moscon
is Senior Research Fellow in Intellectual Property and Competition Law at the Max Planck Institute for Innovation and Competition. Email:valentina.moscon@ip.mpg.de.
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Frederick Mostert
is Professor of Intellectual Property at the Dickson Poon School of Law, King’s College and Research Fellow at the Oxford Intellectual Property Research Centre. Email: frederick.mostert@kcl.ac.uk.
Kylie Pappalardo
is a Lecturer in the Law School at the Queensland University of Technology (QUT) in Brisbane. Email:k.pappalardo@qut.edu.au.
Kyung-Sin Park
is a Professor at Korea University Law School. Email:kyungsinpark@korea.ac.kr
Miquel Peguera
is an Associate Professor of Law at the Universitat Oberta de Catalunya (UOC) in Barcelona and Affiliate Scholar, Stanford Center for Internet and Society. Email: mpeguera@uoc.edu.
Maayan Perel
is an Assistant Professor in Intellectual Property Law at the Netanya Academic College in Israel and a Senior Research Fellow at the Cyber Center for Law & Policy, University of Haifa. Email:maayanfilmar@gmail.com
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Marco Ricolfi
is Professor of Intellectual Property at the Turin Law School, Partner at the law firm Tosetto, Weigmann e Associati, and Co-director of the Nexa Center on Internet and Society of the Turin Polytechnic. Email:marco.ricolfi@studiotosetto.it
Jaani Riordan
is a barrister at 8 New Square, London. Email:jr@8newsquare.co.uk
Eleonora Rosati
is an Associate Professor in Intellectual Property Law at Stockholm University and an Of Counsel at Bird & Bird. Email:eleonora@e-lawnora.com
(p. xviii) Alan M. Sears
is a Researcher and Lecturer at Leiden University’s eLaw Centre for Law and Digital Technologies. Email:a.m.sears@law.leidenuniv.nl
Martin Senftleben
is a Professor of Intellectual Property Law, Institute for Information Law, University of Amsterdam and a Visiting Professor, Intellectual Property Research Institute, University of Xiamen. Email:m.r.f.senftleben@uva.nl.
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is a Professor in the Law School at Queensland University of Technology in Brisbane. Email:n.suzor@qut.edu.au.
Dan Jerker B. Svantesson
is a Professor at the Faculty of Law at Bond University, a Visiting Professor at the Faculty of Law, Masaryk University, and a Researcher at the Swedish Law & Informatics Research Institute, Stockholm University. Email:dasvante@bond.edu.au
Mariarosaria Taddeo
is a Researcher Fellow at the Oxford Internet Institute and Deputy Director of the Digital Ethics Lab. Email:mariarosaria.taddeo@oii.ox.ac.uk
Ben Wagner
is an Assistant Professor and Director of the Privacy & Sustainable Computing Lab at Vienna University of Economics and Business and a Senior Researcher of the Centre of Internet & Human Rights (CIHR). Email:ben@benwagner.org.
Diego Werneck Arguelhes
is an Associate Professor of Law at Insper Institute for Education and Research, São Paulo, Brazil. E-mail:DiegoWA@insper.edu.br.
Nicolo Zingales
is an Associate Professor of Law at the University of Leeds, an Affiliate Scholar at Stanford Center for Internet and Society, and a Research Associate at the Tilburg In
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Mapping Online Intermediary Liability
Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law, IT and Communications Law Online Publication Date: May 2020 DOI: 10.1093/oxfordhb/9780198837138.013.1
Abstract and Keywords
Mapping intermediary liability online is a high call impelled by the fragmentation of intermediary liability legislation, regulation, and case law that, nonetheless, apply to globalized online service providers operating across the world in an interdependent digital environment. The Oxford Handbook of Online Intermediary Liability endeavours to substantially contribute to this mapping exercise, both from a subject-specific and jurisdictional perspective, while highlighting emerging trends in a field of research that has been fastevolving and is today in a constant, quite unpredictable, flux. This chapter contextualizes the mapping exercise undertaken by the contributors to the Handbook. It introduces the findings of subsequent chapters and sews them together in an organic discourse to provide a blueprint for the consistent development of those chapters as it sets out in advance the most relevant trends according to which the structure of the Handbook has been generated.
INTERMEDIARYliability has emerged as a defining governance issue of our time. However, modern legal theory and policy struggle to define an adequate framework for the liability and responsibility of online service providers (OSPs). In addition, market conditions, against which the initial regulation was developed, have changed considerably since the first appearance of online intermediaries almost two decades ago. These changes started to be reflected in new policy approaches. Tinkering with this matter which is in constant flux brought The Oxford Handbook of Online Intermediary Liability into being. The Handbook will crystallize the present theoretical understanding of the intermediary liability conundrum, map emerging regulatory trends, and qualify political and economic factors that might explain them. In doing so, the Handbook will provide a comprehensive, authoritative, and ‘state-of-the-art’ discussion of intermediary liability by bringing together multiple scholarly perspectives and promoting a global discourse through cross-jurisdictional parallels. The Handbook thus serves as a privileged venue for observing emerging trends in internet jurisdiction and innovation regulation, with special emphasis on enforcement
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Mapping Online Intermediary Liability
strategies dealing with intermediate liability for copyright, trade mark, and privacy infringement, and the role of online platforms in moderating the speech they carry for users, including obligations and liabilities for defamation, hate, and dangerous speech.
With globalized OSPs operating across the world in an interdependent digital environment, inconsistencies across different regimes generate legal uncertainties that undermine both users’ rights and business opportunities. To better understand the heterogeneity of the international online intermediary liability regime and contribute to this important policy debate, the Handbook enlisted leading authorities with the goal of mapping the field of online intermediary liability studies. This effort builds on the work of a predecessor, the World Intermediary Liability Map (WILMap), a repository for information (p. 4) on international intermediary liability regimes hosted at the Stanford Center for Internet and Society (CIS), that I developed and launched with contributions from many of the co-authors of this Handbook.1
The Handbook’s attempt to study intermediary liability and come to terms with a fragmented legal framework builds on a vast array of other efforts. Besides the WILMap mentioned earlier, mapping and comparative analysis exercises have been undertaken by the Network of Centers,2 the World Intellectual Property Organization (WIPO),3 and other academic initiatives.4 Institutional efforts at the international level are on the rise. The Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial) worked towards the establishment of global provisions on intermediary liability within a charter of internet governance principles.5 The final text of the NETmundial Statement included the principle that ‘[i]ntermediary liability limitations should be implemented in a way that respects and promotes economic growth, innovation, creativity, and free flow of information’.6 The Organisation for Economic Co-operation and Development (OECD) issued recommendations on Principles for Internet Policy Making stating that, in developing or revising their policies for the internet economy, the state members should consider the limitation of intermediary liability as a high level principle.7 Also, the 2011 Joint Declaration of the three Special Rapporteurs for Freedom of Expression contains statements suggesting an ongoing search for a global regime for intermediary liability.8 The Representative on Freedom of the Media of the (p. 5) OSCE issued a Communiqué on Open Journalism recognizing that ‘intermediaries have become one of the main platforms facilitating access to media content as well as enhancing the interactive and participatory nature of Open Journalism’.9 Efforts to produce guidelines and general principles for intermediaries also emerged in civil society. In particular, the Manila Principles on Intermediary Liability set out safeguards for content restriction on the internet with the goal of protecting users’ rights, including ‘freedom of expression, freedom of association and the right to privacy’.10 Other projects developed best practices that can be implemented by intermediaries in their conditions of service with special emphasis on protecting fundamental rights.11 For example, under the aegis of the Internet Governance Forum, the Dynamic Coalition for Platform Responsibility aims to delineate a set of model contractual provisions.12 The provisions should be compliant with the UN ‘Protect, Respect and Remedy’ Framework as endorsed by the UN Human Rights Council together with the UN Guiding Principles on Business and Human Rights.13 Ranking Digital Rights is an addi
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tional initiative that promotes best practice and transparency among online intermediaries.14 The project ranks internet and telecommunications companies according to their moral behaviour in respecting users’ rights, including privacy and freedom of speech. Several initiatives have looked into notice-and-takedown procedures in order to highlight possible chilling effects and propose solutions. Lumen—formerly Chilling Effects— archives takedown notices to promote transparency and facilitate research into the takedown ecology.15 The Takedown Project is a collaborative effort housed at the University of California, Berkeley School of Law and the American Assembly to study notice-and-takedown procedures.16 Again, the Internet and Jurisdiction project has been developing a due process framework to deal more efficiently with transnational notice-and-takedown requests, seizures, mutual legal assistance treaties (MLATs), and law enforcement cooperation requests.17
(p. 6)
1. Mapping Fundamental Notions
Following this chapter, PartIIof the Handbook maps out fundamental notions and issues in online intermediary liability and platforms’ regulation that will serve as a basis for further analysis in later Parts. It provides a taxonomy of internet platforms, an analysis of evidence-based research in the field, and a general discussion of a possible basis for liability and remedies. In addition, it puts into context intermediary liability regulation with fundamental rights—a theme that will resurface many times throughout the Handbook— and considers the ethical implications of the online intermediaries’ role.
Graeme Dinwoodie sets the stage by defining a taxonomy of online intermediaries in Chapter2. Dinwoodie ask the question Who are Internet Intermediaries? or, as multiple alternatives go, ‘online service providers’ or ‘internet service providers’. The first findings, disappointing as they may be, are that there is little consensus, a condition that is common to all things related to online intermediary liability. Fragmentation and multiple approaches abound. Reconstruction of the notion comes from scattered references in statues and case law, obviously a suboptimal approach for promoting consistency and legal certainty. However, Dinwoodie does a stellar job of finding patterns within the confusion and bringing together the systematization of other contributors to the Handbook, such as Jaani Riordan and Martin Husovec.18 Within the broad view of online intermediaries endorsed by Dinwoodie, we are left with the option of pursuing an essentialist approach that responds to technology or going beyond it in search of a more dynamic approach unbounded by ephemeral technological references. The present debate on the overhaul of the online intermediary liability regime exposes the limitations of the former approach as it is striking how in just twenty years—when the first intermediary liability regulations were enacted—the online market and its technological solutions have changed. A well-known definition from the OECD bears out this point: ‘Internet intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties.’19 Traditional distinctions in access, hosting, caching providers, and search engines has in
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Mapping Online Intermediary Liability
creasingly become obsolete. More granularity is needed and account should be taken of actors performing multiple functions and services.
Jaani Riordan follows up on Dinwoodie’s taxonomy by describing the typology of liability that may attach to online intermediaries’ conduct. Liability rules give rise to two main classes of obligation: monetary and non-monetary. Monetary liability may be further divided along a spectrum comprising four main standards: strict liability; negligence or faultbased liability; knowledge-based liability; and partial or total immunity. Non-monetary liability may be further divided into prohibitory and mandatory (p. 7) obligations. As Riordan explains, these rules can be then situated within concepts of primary and secondary liability. The review of the types of liability and intermediary obligations also leads to identifying the main justifications given for imposing liability on intermediaries. On one side, liability rules may attribute blame to secondary actors who have assumed responsibility for primary wrongdoers and intermediary liability rules reflect the secondary actor’s own culpability. Alternatively, secondary liability rules can be justified by reducing enforcement costs by secondary actors who are likely to be least-cost avoiders. Finally, Chapter3provides an overview of the types of wrongdoing which may be relevant to intermediaries’ liability, including copyright infringement, trade mark infringement, defamation, hate speech, breach of regulatory obligations, and disclosure obligations. Further chapters will pick up several of these wrongdoings for more detailed discussion.
In Chapter4, Martin Husovec completes this preliminary mapping exercise with an overview of remedies for intermediary liability. Husovec describes damages and injunctions, their scope and goals, while also analysing the costs of those remedies. In Husovec’s view, there are three legal pillars of liability that lead to remedies: primary liability, secondary liability, and injunctions against innocent third parties or intermediaries, which are a more recent development. Applying any of these pillars to intermediaries has consequences by changing the scope of damages, their aggregation, scope, and goal of injunctions, and their associated costs. This, according to Husovec, launches forms of ‘remedial competition’, where plaintiffs may have an incentive to bring lawsuits against parties that never acted wrongfully themselves, rather than against known tortfeasors that might better redress the wrongdoing. In this respect, distinguishing the cost structure between intermediaries as infringers and innocent third parties—therefore exempting innocent third parties from the full or partial burden of compliance and procedural costs— would limit incentives to act against innocent third parties as well as negative externalities for technological innovation. As Husovec discusses, some jurisdictions address this issue by putting in place the necessary balancing, while others do not come up with similar distinctions. More generally, mapping remedies for intermediary liability leads to the conclusion that much still needs to be done to bring about consistency between different jurisdictions. In search of consistency, legal systems should look for a common vocabulary and a common set of consequences associated with regulatory modalities.
Chapter5wraps up the legal framework that has been in place for almost two decades by looking at it through the lens of empirical evidence. Kristofer Erickson and Martin Kretschmer provide a thoughtful study on the implication of empirical evidence for inter
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Mapping Online Intermediary Liability
mediary liability policy, which builds on previous empirical projects such as the Copyright Evidence Wiki, an open-access repository of findings relating to the effects of copyright.20 As ‘we appear to be in the midst of a paradigm shift in intermediary (p. 8) liability, moving from an obligation to act once knowledge is obtained to an obligation to prevent harmful content appearing’—Erickson and Kretschmer note—changes in the legal framework should be based on hard empirical evidence that attaches those changes to positive externalities for society, while addressing negative externalities that emerged under the previous regimes. Empirical data—which Erickson and Kretschmer identify and discuss—such as the volume of takedown requests, the accuracy of notices, the potential for over-enforcement or abuse, transparency of the takedown process, and the costs of enforcement borne by different parties, should be assessed in advance of policymaking. Legislative and regulatory changes should then follow from an empirically-based policymaking process. All in all, according to Erickson and Kretschmer, evidence suggests that the notice-andtakedown regime works and its shortcomings should be ‘addressed through tweaking, rather than overhauling, the safe harbour regime’. In addition, data gathering and transparency of algorithmic decision-making becomes a critical call for the platform society, which increasingly becomes a ‘black box society’ where users’ lives are daily affected by unaccountable privately-run algorithms.21 Algorithmic accountability will be further discussed by Ben Wagner in Chapter35.
After mapping fundamental categorizations in the field, PartIIalso highlights tensions within the system, especially concerning the ethical implications of intermediary liability regulation and frictions with fundamental rights. In Chapter6, Mariarosaria Taddeo investigates the ethical implications of intermediary liability by describing moral responsibilities of OSPs with respect to managing access to information and human rights. As designers of online environments, OSPs play a civic role in mature information societies. This role brings about a responsibility for designing OSPs’ services according to what is acceptable and socially preferable from a global perspective that can reconcile different ethical views and stakeholders’ interests. In applying Floridi’s soft ethics to consider what responsibilities the civic role of OSPs entails, Taddeo concludes that OSPs need to develop ethical foresight analyses to consider the impact of their practices and technologies step-by-step and, if necessary, identify alternatives and risk-mitigating strategies. In Chapter7, Christophe Geiger, Elena Izyumenko, and I consider the tension between intermediary liability and fundamental rights with special emphasis on the European legal framework. Competing fundamental rights, such as freedom of expression, privacy, freedom of business, and the right to property are entangled in the intermediary liability conundrum. Policymakers are still in search of a balanced and proportional fine-tuning of online intermediaries’ regulation that can address the miscellaneous interests of all stakeholders involved, with special emphasis on users’ rights. In this context, the increasing reliance on automated enforcement technologies, which will be the topic of further review in several chapters of the Handbook, might set in motion dystopian scenarios where users’ fundamental rights are heavily undermined.
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2. Mapping International Fragmentation: From Safe Harbours to Liability
PartIIIsets out to establish the fragmented field of online intermediary liability by mapping international actions which have oscillated from safe harbours to liability. This Part presents a jurisdictional overview discussing intermediary liability safe harbour arrangements and highlighting systemic fragmentation and miscellaneous inconsistent approaches. Each chapter in this Part focuses on regional trends, then cherry-picks an important topic to be discussed in detail. In this respect, PartIIIexposes an increasing number of cracks that appear in safe harbour arrangements—where they are in place—and the enhanced responsibilities that multiple jurisdictions cast on online intermediaries and platforms. Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum.
In the mid-1990s, after an initial brief hesitation,22 legislators decided that online intermediaries, both access and hosting providers, should enjoy exemptions from liability for wrongful activities committed by users through their services. The United States first introduced these safe harbours. In 1996, the Communications Decency Act exempted intermediaries from liability for the speech they carry.23 In 1998, the Digital Millennium Copyright Act introduced specific intermediary liability safe harbours for copyright infringement under more stringent requirements.24 Shortly after, the e-Commerce Directive imposed on EU Member States the obligation to enact similar legal arrangements to protect a range of online intermediaries from liability.25 Other jurisdictions have more recently followed suit.26 In most cases, safe harbour legislation provides mere (p. 10) conduit, caching, and hosting exemptions for intermediaries, together with the exclusion of a general obligation on online providers to monitor the information which they transmit or store or actively seek facts or circumstances indicating illegal activity.27
According to Eric Goldman, who provides an overview of the state of intermediaries’ immunities in the United States in Chapter8, even the traditionally strong enforcement of online intermediaries’ safe harbours in section 230 of the Communication Decency Act (CDA) shows signs of decay with critics claiming that the functional life of section 230 is nearing its end and more regulation is necessary.28 Similarly, safe harbours for copyright infringement provided for by the US DMCA have also been questioned.29 However, on the other hand, trade agreements like the United States–Mexico–Canada Agreement (USMCA) or NAFTA 2.0 have exported the section 230 arrangement to other countries—Canada and Mexico—both making it a North American standard and limiting the power of Congress to undermine significantly section 230. In Chapter9, Juan Carlos Lara Gálvez and Alan Sears follow up by discussing the impact of free trade agreements (FTAs) on internet intermediary liability in Latin America. They note that even where FTAs have been
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adopted between the United States and Latin American countries, the implementation of related intermediary liability provisions lags behind. So far, only Chile and Costa Rica have implemented these provisions in their national laws. Notably, after the withdrawal of the Unites States from the Trans-Pacific Partnership (TPP), the remaining parties reached an agreement on an amended version of the TPP, which actually suspended the provisions pertaining to online intermediaries’ safe harbours. In sum, Lara and Sears question whether adopting the DMCA model is ideal for Latin American countries. In any event, they note, there is no consensus in Latin America on whether this would be the best model for balancing the rights of copyright holders and the general public, which explains the resistance in implementing this regime nationally.
Similar resistance to providing immunities for intellectual property infringement is also shown in the Brazilian Marco Civil da Internet (MCI)—or Internet Bill of Rights—introducing a civil liability exemption for internet access providers and other internet providers.30 This broad civil—and not criminal—liability exemption, however, does not apply to copyright infringement.31 Luiz Moncau and Diego Arguelhes describe the process leading to enactment of the MCI and its main achievements in Chapter10 (p. 11) Although the MCI is simply an ordinary federal statute, it arguably stands out as a manifestation of digital constitutionalism, as Moncau and Arguelhes argue. Following in the footsteps of an emerging global move,32 the MCI updates and translates the traditional concerns of constitutionalism—protecting rights and limiting power—into a realm where the enjoyment of powers is very much threatened by private companies that hold the resources and tools to shape our online experience.
African countries have been discussing the introduction of a safe harbour regime for online intermediaries for quite some time. In Chapter11, Nicolo Zingales reviews a global attempt in several African jurisdictions to adjust the legal framework to the challenges posed by the platform economy. In Intermediary Liability in Africa: Looking Back, Moving Forward?, Zingales highlights how the African Union (AU) has attempted to drive harmonization on the basis of the South African Electronic Communications Act—the first and most sophisticated intermediary liability legislation in the area.33 Ghana, Zambia, and Uganda have enacted legislation heavily inspired by the South African model. Meanwhile, AU-led interstate cooperation has raised awareness of human rights protection online, cybersecurity, and personal data protection, in particular with a dedicated AU Convention.34 However, very limited intermediary liability legislation has been adopted in the region. In this fragmented legal framework, cyber-policing obligations become entangled with immunities and the self- and co-regulation schemes that characterize the South African Electronic Transactions Act, posing challenges to due process and other fundamental rights, such as freedom of expression. According to Zingales, only the AU could promote a shared notion of intermediary liability exemptions in the region.
An inconsistent approach that brings about legal uncertainty also characterizes the Australian law governing the liability of online intermediaries, according to Kylie Pappalardo and Nicolas Suzor, who provide a comprehensive review of the current state of Australian online intermediary liability law across different doctrines, such as laws of defamation,
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Mapping Online Intermediary Liability
racial vilification, misleading and deceptive conduct, contempt of court, and copyright. In Chapter12, Pappalardo and Suzor show that the basis on which third parties are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. Australian law lacks articulation of a clear distinction for circumstances in which intermediaries will not be held liable, which results in a great deal of uncertainty. These conflicts in flux within Australian doctrines that have been applied to online intermediary liability have led to a push for greater online enforcement and intermediary regulation based on the capacity of doing something to prevent harm rather than responsibility. Pappalardo and Suzor posit that confusion between capacity and responsibility has a role in much of the uncertainty in Australia intermediary liability regulation. One solution would be for Australian courts to more strictly apply responsibility (p. 12) theory in tort law and ascribe liability only after examining the intermediaries’ causal role in committing the wrong, therefore establishing fault first and liability later.
In Chapter13, Kyung-Sin Park compares the intermediary liability rules of six major Asian countries including China, India, Japan, Korea, Indonesia, and Malaysia to demonstrate that under the label of safe harbours lies, in fact, a liability trap.35 China and South Korea adopted a rule that an intermediary is required to remove known unlawful content on the penalty of liability and thereby set out to specify when the intermediaries will be held liable, instead of when they will not be held liable, inadvertently creating a liability-imposing rule instead of a liability-exempting rule. India’s regulation, namely the 2011 Intermediary Guidelines, generated a raft of obligations on intermediaries that threatened to convert the whole system into one imposing, rather than exempting from, liability. However, such a threat may have had an impact on the jurisprudence that, by way of the 2013 Shreya Singhal decision,36 made the Indian system an extremely ‘safe harbour’ by requiring judicial review for taking down infringing content. Further, Indonesia’s draft safe harbour regulation which was announced in December 2016 seems to move towards the model of China and South Korea, while Malaysia’s copyright notice and takedown seems to follow the US model closely but has a structure that allows the same misunderstanding made by the Korean regulators. All in all, Park shows how all over Asia online intermediary liability is on the rise, while safe harbours’ scope narrows proportionally.
In Chapter14, Danny Friedmann expands on China and explains how the interplay of multiple laws, regulations, and judicial interpretations have produced a system where weak safe harbours for online intermediaries oscillate heavily towards enhanced liability, given a very broad notion of ‘knowledge’ and the fact that an OSP without the ability to control copyright or trade mark infringement can still be found liable. This liability-imposing rule ends up putting pressure on intermediaries to take down unlawful—and lawful— content. This seems to imply that filtering standards for OSPs in China will be continuously on the rise as well as their obligations to sanitize their networks against allegedly infringing content. This regulatory approach will be increasingly coupled with predictive artificial intelligence (AI) analytics and deep learning that will allow massive data processors, like Alibaba and Baidu, to become an omniscient tool against alleged infringement, both intellectual property (IP) and speech related. However, in a move that is surprisingly similar to that of other jurisdictions, especially the European Union, the Chinese regulato
