Intermediary Liability Research Articles

The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?

On 15 December 2020, the European Commission published its proposal for a Regulation on a Single Market for Digital Services (Digital Services Act). It carries out a regulatory overhaul of the 21-year- old horizontal rules on intermediary liability in the Directive and introduces new due diligence obligations for intermediary services. Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this paper, we look specifically at the intersection of the Digital Services Act with the regime for online content sharing service providers (OCSSPs) set forth in art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by art. 17 CDSM Directive, as well as specific rules on matters where art. 17 leaves margin of discretion to Member States. This includes, to varying degrees, rules in the DSA relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where art. 17 CDSM Directive contains specific (but less precise) regulation on the matter. From a normative perspective, this might be a desirable outcome, to the extent that the DSA aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might be help achieve that goal.

An Endless Odyssey? Content Moderation Without General Content Monitoring Obligations

In line with the E-Commerce Directive and the Directive on Copyright in the Digital Single Market, the proposed Digital Services Act provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature. Against this background, the analysis sheds light on the general monitoring ban in the EU acquis and maps different approaches to its interpretation and implementation in practice. Based on a detailed analysis of Court of Justice jurisprudence and fundamental rights implications, the analysis leads to the insight that a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers. This insight is of particular importance because it prevents encroachments upon fundamental rights and paves the way for a proper understanding of the scope of content moderation duties.

La responsabilidad de las plataformas de economía colaborativa a la luz de la Ley 34/2002 de Servicios de la Sociedad de la Información

Collaborative economy platforms now play a fundamental role in the development of digital commercial relations and with the birth of this model of exchange, a series of legal questions have arisen that national and international legislators have preferred to approach cautiously. This paper examines the debate surrounding the liability of intermediaries through an analysis of the Law on Information Society Services and the dichotomy between the digital intermediary and the service provider, analysing the difficulties that exist in distinguishing between them and graduating their liability regime. With a view to the proposed Digital Services Regulation, the lack of current international legislation covering this casuistry means that it must be resolved by means of Private International Law rules to be subsumed in the domestic legislation of each country, although there are some “general” regimes of contractual and non-contractual liability, which will be the subject of study in this article.

It’s all linked: How Communication to the Public Affects Internet Architecture

The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It reaches into basic online activities, such as linking. Departing from well-established international approaches, the Court of Justice of the European Union (CJEU) has recently decided a multitude of cases that redesigned the notion of communication to the public in the Internet, while discussing linking activities in particular. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the center stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP) — the large majority of UGC platforms — communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive filtering — rather than ex post review of allegedly infringing content and links — is set to become the first commandment governing the Internet of tomorrow.

The Digital Services Act: From Intermediary Liability to Platform Regulation

The Digital Services Act: From Intermediary Liability to Platform Regulation

U.S. International Trade Commission Testimony

This testimony responds to a Congressional inquiry on the subject of foreign censorship. It focuses on laws regulating Internet platforms, and because of the ITC's trade focus also prioritizes issues with potential economic impact. The initial filing June 24, 2021 filing addresses (1) competing concepts of censorship in platform regulation, (2) the role of informal government pressure or jawboning on platforms' global speech rules, (3) recent developments in non-U.S. governments' formal claims of extraterritorial jurisdiction to regulate speech, (4) emerging jurisdictional hardball practices, including hostage provisions in national laws regulating platforms, and (5) potential economic and competitive impact of recent and pending platform law developments. The post-hearing submission, addressing questions raised in the July 1, 2021 hearing, addresses (1) developments in India, (2) state action in intermediary liability laws, (3) studies attempting to quantify or otherwise empirically assess the economic impact of intermediary liability laws, (4) threats to end-to-end-encryption with both economic and speech-related consequences, with a list of experts and sources on the topic.

미국 통신품위법상 대화형 컴퓨터 서비스제공자의 면책과 EARN IT Act의 이해

미국 통신품위법상 대화형 컴퓨터 서비스제공자의 면책과 EARN IT Act의 이해

Information control by public punishment: The logic of signalling repression in China

When does repression of online expression lead to public punishment of citizens in China? Chinese social media is heavily censored through a system of intermediary liability in which the government relies on private companies to implement content controls. Outside of this system the Chinese authorities at times utilize public punishment to repress social media users. Under China’s regulatory environment, individuals are subject to punishment such as fines and detention for their expressions online. While censorship has become more implicit, authorities have periodically announced cases of repression to the public. To understand when the state escalates from censoring online content to punishing social media users for their online expressions and publicizes the punishment, we collected 468 cases of state repression announced by the authorities between 1 January 2014 and 1 April 2019. We find that the Chinese authorities most frequently publicize persecutions of citizens who posted online expression deemed critical of the government or those that challenged government credibility. These cases show more evidence of the state pushing the responsibility of ‘self-regulation’ further to average citizens. By making an example of individuals who post prohibited content even in semi-public social media venues, the state signals strength and its determination to maintain authority.

THE TURN TO TRADE AGREEMENTS IN GLOBAL PLATFORM GOVERNANCE

In the past few years, a growing number of proposals have been developed to govern major platforms for user-generated content through formalized legislation as well as voluntary self-regulatory initiatives. This paper focusses on the increasingly significant use of trade agreements for the governance of these platforms. While trade agreements have been analysed by academics working on internet governance, copyright, and other issues, they still have underexplored implications for national governments that are trying to craft regulation designed to address a host of perceived democratic externalities posed by dominant technology firms and platform providers like Facebook, Google, Microsoft, and Amazon. Presenting the first results of an interdisciplinary project bringing together digital communication scholars, internet governance researchers, and international relations academics to look at the nexus of digital governance and international trade, the paper seeks to understand how different political actors are using trade agreements to ‘lock in’ their preferences on platform governance topics like intermediary liability and competition policy. Building on the analysis of major bilateral and multilateral trade agreements, as well as leaked documents from ongoing negotiations, the paper provides a mapping of the issues related to platform governance included in these instruments. Using this dataset, it then analyses the respective positions of various countries on relevant issues in the negotiations, seeking to create a typology of key issues that will provide a starting point for a deeper analysis of key actor strategies.

THE STATE OF GLOBAL HARMFUL CONTENT REGULATION: EMPIRICAL OBSERVATIONS

Online intermediaries have always been regulated, locked in heated battles around intermediary liability for copyright or privacy reasons (Tusikov, 2016; Gorwa 2019). But a notable trend is the rapidly growing use of policy to try and govern user-generated content with a host of other perceived social or individual harms, such as disinformation, hate speech, and terrorist propaganda (Kaye, 2019; York 2019; Suzor 2019). Even as increasing academic and policy attention is paid to the global ‘techlash’, and leading voices outlining the various ways in which expression online is currently under threat, our understanding of the overall policy landscape remains ad hoc and incomplete. The goal of this paper is thus to present some initial observations on the state of harmful content regulation around the world, drawing upon a new original dataset that seeks to capture the global universe of harmful-content regulatory initiatives for user-generated content online. The first part of the paper presents descriptive results, showing the evolution (and notable increase) in policy development in the past two decades. The second half of the paper provides insight into which specific issue areas have attracted the most formal and informal regulatory arrangements, and assesses the scope (what kind of actors are seen as being a ‘platform,’ and how that is defined), key policy mechanisms (takedown regimes, transparency rules, technical standards), and sanctioning procedures (fines, criminal liability) enacted in these regulations.

Regulatory overkill? A critical review of the intermediary liability in the context of the cybersecurity law in Tanzania

This article offers a critical review of the intermediary liability landscape in Tanzania. The point of departure for discussion and analysis is Part V of the Cybercrimes Act 2015, which provides a regime of intermediary liability as well as recent obligations brought about by the Electronic and Postal Communications (Online Content) Regulations 2018. Both pieces of legislation are reviewed through the lenses of international and regional best practices in this field. The main argument that is advanced in this paper is that the regime of intermediary liability in Tanzania offers limited protection to intermediaries in cases where third parties seek to hold them liable for the conduct of their users, as demonstrated by recent case law. Also, this regime imposes more obligations on the part of intermediaries to such an extent that there is a death of no monitoring obligations.

Monitoring and Filtering: European Reform or Global Trend?

This chapter of the Oxford Handbook of Online Intermediary Liability analyses the evolution of a trend towards the imposition of proactive monitoring obligations on intermediaries along the entire spectrum of intermediary liability subject-matters and magnifies on the reform within the European Union (EU) copyright law framework. Article 17 of the newly enacted EU Directive on the Digital Single Market has come under fire for the heightened level of liability it imposes on online services providers (OSPs) for copyright infringing content stored or transmitted by them. Based on an analysis of case-law from multiple jurisdictions and an overview of industry practice, this chapter seeks to locate the new European reform within a much wider global trend that aims to impose proactive monitoring and filtering obligations on OSPs. It argues that the impetus for the introduction of Article 17 is rooted in the ‘Internet threat’ discourse and reflects a gradual shift in the perception of OSPs from being ‘mere-conduits’ to ‘active gate-keepers’ of content uploaded and shared by users. Following an evaluation of the extent to which Article 17 diverges from the existing intermediary liability framework in the EU, the chapter concludes by analyzing its potential impact on users’ fundamental rights and freedoms, particularly in the light of its propensity to motivate wider use of automated filtering systems and algorithmic enforcement mechanisms.

CDA 230 Goes North American? Examining the Impacts of the USMCA’s Intermediary Liability Provisions in Canada and the United States

This report examines the impact of the United States-Mexico-Canada Agreement (USMCA) on the intermediary liability regimes in Canada and the United States. Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content. Given the ongoing debate in the U.S. regarding the future of CDA 230, our report suggests that the USMCA’s approach to intermediary liability could serve as a model for amending CDA 230, given the balance the USMCA strikes between addressing online harms and protecting platforms. Our report also outlines how current Canadian intermediary liability laws are inconsistent with the USMCA, as are some recent proposals advanced in Canada to hold social media companies liable for the content they host. Correspondingly, we recommend that careful consideration be given by federal and provincial parliamentarians to introducing legislation to align Canadian law with the USMCA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the USMCA.

Policy by judicialisation: the institutional framework for intermediary liability in Brazil

ABSTRACT This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.

A market-based approach to internet intermediary strict products liability

ABSTRACT This essay proposes a way of dealing with the strict liability of Internet sellers of other manufacturers’ products, such as Amazon under its ‘Fulfillment by Amazon’ program. I discuss and reject two approaches to the problem that have been proposed by the courts, and advance a view according to which the relevant inquiry is whether Internet intermediaries such as Amazon could have prevented a defective product from reaching the US market. This view accounts in a satisfactory manner for the notion of responsibility that is at the core of US strict products liability law, and avoids the pitfalls of alternative policies. However, since this view also entails a de facto quasi-immunity to lawsuits for Internet intermediaries in many cases, safeguards to that quasi-immunity are also addressed. While the essay focuses on US law, the principles and policies under discussion should be applicable in other jurisdictions as well.

Internet Intermediaries and Copyright Law. Towards a Future-proof Legal Framework

Internet Intermediaries and Copyright Law. Towards a Future-proof Legal Framework

It's all linked: How communication to the public affects internet architecture

The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It reaches into basic online activities, such as linking. Departing from well-established international approaches, the Court of Justice of the European Union (CJEU) has recently decided a multitude of cases that redesigned the notion of communication to the public in the Internet, while discussing linking activities in particular. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the centre stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP)—the large majority of UGC platforms—communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive filtering—rather than ex post review of allegedly infringing content and links—is set to become the first commandment governing the Internet of tomorrow.

Testimony and Follow-Up Responses, United States Senate Committee on the Judiciary, Subcommittee on Intellectual Property Hearing on the Digital Millennium Copyright Act at 22: How Other Countries Are Handling Online Piracy

This testimony was given to the United States Senate Committee on the Judiciary, Subcommittee on Intellectual Property as part of its Hearing on the Digital Millennium Copyright Act at 22: How Other Countries Are Handling Online Piracy. In it I first briefly describe the goals and trade-offs inherent in any intermediary liability law; then describe the DMCA’s place in the global landscape of intermediary liability laws; then discuss concerns about filtering proposals and the recently enacted Article 17 of the EU’s Digital Single Market (DSM) Directive. The document also includes follow-up responses to additional questions from Senators Tillis, Coons, and Blumenthal submitted on April 14, 2020.

Mapping Current and Emerging Models of Intermediary Liability

This paper maps current and emerging models of intermediary liability to support the Broadcasting and Telecommunications Panel review of Canada’s communications legislation. This paper serves two functions. First, it examines policy issues that are foundational to intermediary liability, namely, innovation policy, free speech policy, business freedom and their public functions, the power derived from data repositories and artificial intelligence, and regulatory design. That intermediaries implicate such a cross-section of policy issues speaks to their central role in the digital economy. The taxonomy I create in this paper is mindful of these foundational policy issues and is driven by the following assessment. First, intermediaries should be assessed pursuant to their activities, and not simply based on a category of what they are (e.g. search engine or ISP). Second, intermediaries might fit multiple categories and that should inform the regulatory burden. Third, some intermediaries wield tremendous power, and the taxonomy of activities should be categorized related to the source of that power, and that is their control over the flow of information online. Second, building on this foundation, the paper maps intermediary liability laws. The scope is broad, including Canadian laws in the areas of defamation, privacy (tort), intimate images and cyberbullying (legislation), privacy (data protection), civil law in Quebec, broadcasting, radio and telecommunications, copyright, criminal law (terrorism and non-consensual distribution of intimate images (NCDII)), CASL and the United States Mexico Canada Agreement (USMCA or CUSMA). This paper also considers legal frameworks in Europe and the USA, and human-rights driven models.

Addressing Misinformation on Whatsapp in India Through Intermediary Liability Policy, Platform Design Modification, and Media Literacy

Abstract Through a case study of lynchings in India that are perceived to have been catalyzed by misinformation on WhatsApp, this article explores how policymakers can mitigate social media misinformation without compromising public discourse. We evaluate the costs and benefits of three approaches to managing misinformation: intermediary liability reform, changes to platform design, and public information endeavors addressing user attitudes and behaviors. We find that while current media literacy endeavors seem somewhat misdirected, more locally attuned initiatives might productively address the underlying susceptibility to misinformation while avoiding the free speech compromises that come with stringent liability rules and restrictions on anonymous speech.