Intermediary Liability Research Articles

IMPLEMENTATION OF ONLINE DISPUTE RESOLUTION AND MARKETPLACE LIABILITY BASED ON THE PRINCIPLE OF INTERMEDIARY LIABILITY

The rapid growth of online transactions aligns with the increasing potential for disputes between consumers and businesses. The problem is the need for national regulations governing ODR, although some marketplaces have implemented internal dispute resolution systems. This research uses John Rawls' theory of distributive justice to analyze marketplace liability in online dispute resolution, focusing on the principle of intermediary liability. The research method involves a literature review and case analysis on several platforms such as Tokopedia, Shopee, AliExpress, and eBay. The results show that although some marketplaces have developed efficient ODR systems, there are still challenges related to transparency, security, and fairness. Marketplaces are expected to create a more comprehensive and equitable system, considering equal access for consumers.

In Palantir we trust? Regulation of data analysis platforms in public security

Organizations increasingly rely on digital technologies to perform tasks. To do so, they have to integrate data banks to make the data usable. We argue that there is a growing, academically underexplored market consisting of data integration and analysis platforms. We explain that, especially in the public sector, the regulatory implications of data integration and analysis must be studied because they affect vulnerable citizens and because it is not just a matter of state agencies overseeing technology companies but also of the state overseeing itself. We propose a platform-theory-based conceptual approach that directs our attention towards the specific characteristics of platforms—such as datafication, modularity, and multilaterality and the associated regulatory challenges. Due to a scarcity of empirical analyses about how public sector platforms are regulated, we undertake an in-depth case study of a data integration and analysis platform operated by Palantir Technologies in the German federal state of Hesse. Our analysis of the regulatory activities and conflicts uncovers many obstacles to effective platform regulation. Drawing on recent initiatives to improve intermediary liability, we ultimately point to additional paths for regulating public sector platforms. Our findings also highlight the importance of political factors in platform regulation-as-a-practice. We conclude that platform regulation in the public sector is not only about technology-specific regulation but also about general mechanisms of democratic control, such as the separation of power, public transparency, and civil rights.

Civil Liability of Intermediaries in False Statements of Securities

Securities intermediaries such as sponsors, accounting firms, law firms and asset credit assessment agencies are important components of the capital market. In recent years, securities misrepresentation cases have occurred frequently, and securities intermediaries have been more or less identified as having certain faults and bearing corresponding civil liabilities. The judgment of some of these cases has caused a lot of disputes and discussions, which exposes the inadequacy of the law on the civil liability of securities intermediary agencies for false statements, which brings a lot of trouble to the securities market and judicial practice. This paper takes the civil liability system of securities intermediaries for false statements as the research object, adopts normative analysis method, case study method and comparative study method to sort out the legal system and judicial status quo of securities intermediaries for civil liability of false statements, finds and demonstrates the existing difficulties, and tries to put forward corresponding improvement paths.

Round-up of national decisions on online intermediaries and platforms 2023

Abstract Online enforcement of intellectual property rights has for a long time relied on the involvement of online intermediaries and platforms. Besides injunctions against ‘innocent’ intermediaries, questions surrounding the type of and conditions for establishing liability of online intermediaries and platforms have also gained increasing prominence. In Europe, for example, the Court of Justice of the European Union (CJEU) has repeatedly tackled these issues. European Union (EU) legislature has also legislated in this area: on the one hand, Article 17 of Directive 2019/790 is premised on the direct responsibility of certain types of online platforms—online content sharing service providers—for user-uploaded content; on the other hand, the Digital Services Act (Regulation 2022/2065), while reiterating the importance of safe harbours for online intermediaries, has introduced due diligence and transparency obligations that are not premised on any liability of their addressees. In 2023, national courts in Australia, Czech Republic, Germany, Italy, the Netherlands, Poland and Spain delivered a series of important rulings in connection with the treatment of online intermediaries and platforms This contribution provides a round-up of the most significant judgments issued in the period 1 January to 31 December 2023, with a special focus on copyright. The analysis is divided by area (liability of online intermediaries and platforms, enforcement aspects and other issues) and country (Australia, the Czech Republic, Germany, Italy, Poland and Spain).

Economic Analysis of the Responsibility of Social Networks

This research analyzes what are the effects of a stricter intermediary liability standard, where social networks are responsible for user-generated content before a court decision or order. Our estimates show large potential losses of at least BRL 47 million in revenue per year and BRL 23 billion in market value. Furthermore, from the users' point of view, we estimate annual losses in consumer welfare due to a stricter intermediary liability standard of between BRL532 million and BRL4.1 billion. The research concludes that there is no evidence that such a change would improve content removal policies or economic well-being. In fact, this can lead toconsiderable losses for platforms, merchants and consumers alike.

Copyright Infringement of Photographs on E-commerce Platforms

In the rapidly evolving landscape of e-commerce, protecting intellectual property rights, particularly in the realm of photography, has become increasingly vital. This article delves into the complex issue of copyright infringement on e-commerce platforms, with a specific focus on the concept of intermediary liability. While e-commerce platforms offer unparalleled convenience and global reach to consumers, they also present formidable challenges in upholding the rights of content creators, especially photographers. The article uniquely emphasizes the concept of intermediary liability in the context of e-commerce platforms. This focus is particularly relevant given the widespread use of these platforms in today's digital marketplace. One of the significant contributions of this study is the comparative analysis of case law from different jurisdictions concerning intermediary liability for copyright infringement. This cross-jurisdictional examination helps illustrate how courts in various countries address similar issues, offering insights into potential harmonization of legal standards and guiding principles for future legislation and litigation. The research identifies specific challenges faced by photographers and copyright holders, such as the difficulty in monitoring vast quantities of online content and enforcing rights across multiple jurisdictions. The article sheds light on the broader impact of copyright infringement on the photography industry. The research offers practical recommendations and strategies to address copyright infringement on e-commerce platforms. These include leveraging automated image recognition technologies, establishing clear guidelines and protocols for sellers, and implementing efficient mechanisms for reporting and removing infringing content.

The Special Interest Politics of Online Intermediary Liability

The Special Interest Politics of Online Intermediary Liability

The transatlantic divide: intermediary liability, free expression, and the limits of trade harmonization

Abstract Amid escalating apprehensions surrounding content regulation, the USA has discreetly integrated provisions reminiscent of its Communications Decency Act Section 230 (CDA 230) into trade agreements, offering broad immunity. This scholarly analysis critically assesses this manoeuvre by juxtaposing such CDA 230-like provisions against the UK’s established legal framework governing online content and freedom of expression. Utilizing a comparative legal methodology, the paper underscores the pronounced differences between the USA and UK stances on intermediary liability for third-party content, moulded by their unique constitutional foundations and jurisprudential interpretations of free speech rights. The insertion of CDA 230-aligned clauses into trade agreements poses a potential threat to the UK’s nuanced equilibrium between safeguarding free speech and upholding other paramount interests, such as privacy and reputation. An scrutiny of UK defamation statutes and content regulation protocols reveals inherent challenges in transplanting CDA 230 provisions into trade contexts. In summation, the paper ardently supports a diversified approach to online content governance and cautions against standardizing intermediary liability laws via trade agreements, especially between nations with divergent foundational beliefs. It fervently endorses a cross-disciplinary discourse involving both trade and legal specialists to ensure the preservation of free expression while concurrently recognizing the intricacies of crafting universally applicable standards for online platforms and content regulation.

The liability of online intermediaries under European Union law

This research explores the complex and multifaceted issue of online intermediary liability. It illuminates the challenges arising from the absence of uniform regulations and the need for a collaborative system between online intermediaries and rightsholders. Specifically, the article scrutinizes the liability of online intermediaries under European Union law for violations of legal interests in online content. It strives to balance intermediary liability frameworks and fair competition, drawing attention to the relationship between specific provisions and the concurrent regime outlined in the e-Commerce Directive. Moreover, the article evaluates the consistency of liability frameworks for online intermediaries and their compliance with market functioning rules under the Trade Secrets and the Unfair Commercial Practices Directives. Furthermore, the article consults the consequences of the EU Directive on Copyright in the Digital Single Market, which holds online user-generated content platforms directly responsible for infringing content. And, unlike the original draft, the final version of this directive does not impose general monitoring obligations. Nevertheless, online intermediaries may need to implement filtering measures to avoid liability for unauthorized communication of copyright-protected works to the public. The writing also considers the impact of a prior legal framework, and the Digital Service Act established to address the issue of online intermediaries being held liable for any illegal information disseminated through their platforms. The research underscores the innovative features of the Digital Services Act, acknowledging the challenges of creating a practical legal framework striving to avoid conflicts with relevant laws. Therefore, this paper sheds light on the complex nature of online intermediary liability to the EU approach accordingly.

Lies, liability, and lawful content: Critiquing the approaches to online disinformation in the EU

This article considers legislative approaches to online disinformation in the European Union (EU) and identifies how shifting approaches could undermine applicable fundamental rights standards in the disinformation field. The problem of online disinformation – and its disruptive effects on European elections – has attracted extensive scrutiny at the EU institutional and Member State level. Since 2018, Union institutions have pursued self-regulatory measures for disinformation and have explicitly refrained from including this content in the EU’s intermediary liability regime. A key justification for this approach has been that disinformation generally includes lawful content and that restrictions on lawful content may undermine the right to freedom of expression. As this article maps, however, standards are shifting in the EU legal context regarding online intermediary responsibilities to limit the dissemination of content containing disinformation. This is not only evidenced by a diverse set of Member State laws designed to address misleading electoral communications, but also in several provisions of the Digital Services Act (DSA) which have potential applications in this area. Drawing from relevant case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), this article provides a distillation of key European standards regarding how EU and Member State laws to combat disinformation must ensure compatibility with the right to freedom of expression. This article further considers whether – in light of these standards – divergent legislative approaches to online disinformation in the EU could undermine fundamental rights. Disinformation, Freedom of Expression, CFR, Free Elections, Democracy

Non-Fungible Tokens and Select Art Law Considerations

Since 2021, non-fungible tokens (NFTs) have been a popular topic which has kindled the interest of art and technology enthusiasts and professionals. Some had very high expectations for the potential of NFTs, and in some cases, made an assessment for NFTs that go beyond the existing limits of NFTs. There have also been others who approached NFTs suspiciously and in some cases, described them as a hoax. The purpose of this study is to examine the important effects of NFTs on the art world and art law, and to consider NFTs’ current and potential impacts. In this context, this article first provides an introduction to NFTs and why the author finds it interesting to think about legal issues surrounding NFTs. After providing definitions of non-fungible tokens and highlighting technical aspects of NFTs, the article then discusses select legal issues surrounding NFTs, such as the importance of legal terms and conditions of an NFT purchase, legal qualifications of NFTs, artwork ownership, artwork authenticity, artwork provenance and intermediary liability for NFT sales. One of the aims of this study is to put forward clearly what should be expected of non-fungible tokens and their potential. Another objective is to underline the fact that the unique dynamics of the art world necessitate having a unique perspective for legal matters relating to them, which is satisfied with art law and its professionals. Ultimately, this paper aims to contribute to having a more comprehensive understanding of non-fungible tokens and their impact on the art world and surrounding legal questions.

Emerging Regulations on Content Moderation and Misinformation Policies of Online Media Platforms: Accommodating the Duty of Care into Intermediary Liability Models

AbstractDisinformation, hate speech and political polarization are evident problems of the growing relevance of information and communication technologies (ICTs) in current societies. To address these issues, decision-makers and regulators worldwide discuss the role of digital platforms in content moderation and in curtailing harmful content produced by third parties. However, intermediary liability rules require a balance that avoids the risks arising from the circulation at scale of harmful content and the risks of censorship if excessive burdens force content providers to adopt a risk-averse posture in content moderation. This piece examines the trend of altering intermediary liability models to include ‘duty of care’ provisions, describing three models in Europe, North America and South America. We discuss how these models are being modified to include greater monitoring and takedown burdens on internet content providers. We conclude with a word of caution regarding this balance between censorship and freedom of expression.

Application of YouTube/Cyando by Dutch Supreme Court: Usenet operator not liable for copyright infringement

Abstract The Dutch Supreme Court recently applied the criteria for online intermediary liability as formulated by the Court of Justice of the European Union in its YouTube/Cyando ruling (joined cases C-682/18 and C-683/18). The Supreme Court ruled that the operator of a Usenet platform, where copyright-protected works were shared illegally, was not liable for copyright infringement. In particular, the Supreme Court held that there was no intervention by the operator that led to an act of a communication to the public being performed, because the operator had not contributed to giving access to the copyright-protected works.

Democratic responsibility in the digital public sphere

Democratic responsibility in the digital public sphere

Intermediary liability and trade in follow-on innovation

Intellectual property rights have changed the market value and direction of artistic innovation throughout art history, in particular when new creations built on the art of predecessors. In this paper, we test how changes in legal frameworks and litigation risks affected market value and commercial trade around artistic reuses in the figurative arts and the ‘Appropriation Art’ movement in particular. Appropriation artists borrow images from different sources and incorporate them into new, derivative works of art. By doing so, they risk infringing copyright but also put auction trade and artwork availability at litigation risk as liability can extend to market intermediaries, such as auction houses, museums, or galleries. Using a differences-in-differences model and large-scale online data, we investigate the causal impact of the prominent Cariou v. Prince U.S. higher court decision on intermediary trade and the availability of artworks on sale in the Appropriation Art. As an exogenous shock, this decision changed the perceived litigation risk for market intermediaries around what constitutes fair use. Following the court decision, we find a temporary decline in the total number of global auctions in the Appropriation Art, a lower sales probability of these artworks, and a relocation of related auctions to non-U.S. houses.

The Digital Services Act (DSA): A New Era for Online Harms and Intermediary Liability

The EU’s Digital Services Act (DSA) marks the biggest shake up to the rules for online intermediary liability in twenty years. The DSA is accompanied by flanking instruments regulating terrorist content, child sexual abuse material (CSAM) and political ads which, together, will create an entirely new framework for the regulation of online harms in the EU. These new and wide-ranging obligations attempt to reconcile the damage caused by unregulated user-generated content, fundamental rights to freedom of information and the practical limitations of moderating content at scale. The DSA is likely to shape the global approach to content regulation in this emerging area of law. Digital Services Act, DSA, Online Harm, Intermediary Liability, Intermediary Services, Hosting Services, Very Large Online Search Engines, Online Platforms, Very Large Online Platforms

Evolving scope of intermediary liability in India

ABSTRACT The passing of the ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021’ rekindles the age-old question about the scope of intermediary liability in India. The 2021 Code is not the first one to have raised this question. There is a long history of what the law in India wants the intermediaries to do in terms of managing the online space they own. At times, the legal structure has not made the expectations certain and definitive. The article reflects on the scope of intermediary liability in India and the extent of uncertainty that intermediaries face within the existing framework. It makes certain recommendations about bringing certainty for intermediaries. In the process, this article consults Legislation and Guidelines linked with intermediary liability. There is a critical assessment of various judgements delivered on the issue of intermediary liability in India.

Intermediary Liability and Trade in Follow-on Innovation

Intermediary Liability and Trade in Follow-on Innovation

Intermediary Liability and ChatGPT: Why Generative Algorithms Are not and Should not Be Immune under Section 230 (First Draft)

Intermediary Liability and ChatGPT: Why Generative Algorithms Are not and Should not Be Immune under Section 230 (First Draft)

Regulation of Investment-based Crowdfunding in Nigeria: a Review of the Rights, Obligations and Liabilities of Investors, Fundraisers and Intermediaries

Regulation of Investment-based Crowdfunding in Nigeria: a Review of the Rights, Obligations and Liabilities of Investors, Fundraisers and Intermediaries