Rethinking Liability Rules for Online Hosting Platforms

Abstract

With the growing economic and societal importance of online platforms, the question of their liability for illegal content or products they host becomes more important. Based on an analysis of platforms’ incentives, we address the appropriate liability rule for hosting service providers and derive policy recommendations for an efficient liability regime in the European Union. Online hosting platforms may take monitoring efforts on their own initiative that are suboptimal due to the presence of externalities and asymmetric information problems, warranting some form of liability rules. However, for more fundamental reasons of free speech and preventing censorship, policy makers may want to be cautious in entrusting – and burdening – private parties which such an extensive ‘policing’ role. Additionally, higher monitoring requirements may disproportionally burden small entrants. As we argue, since several actors participate to the diffusion of illegal material online, the responsibility of a safe Internet should be shared among all these actors. Concrete regulatory improvements may encourage online hosting platforms to do their part in monitoring proactively and diligently, such as affirming a good Samaritan clause.