Intermediary Liability

Book review: Giancarlo Frosio (Ed.). Oxford Handbook of Online Intermediary Liability. Oxford: OUP, 2020, 800 p.

“COMPARATIVE STUDY ON ONLINE INTERMEDIARY SERVICE PROVIDER IN INDONESIA AND EUROPEAN UNION”

By giving exemption of liability of online intermediary services for Indonesia, it is also expected to create one comprehensive and codified regulation applied only for the general internet regime, or possibly only for online intermediary services. The current overlapping creates multiple impositions of rules. Online intermediary services providers are meant to only provide a platform or media for users to use the platform. This research aims to compare the online intermediary service provide between Indonesia and European Union. This a normative legal research using secondary data. The analysis was conducted using a qualitative approach. Results and discussion found that the E.U. E-Commerce Directive 2000/31 could be a reference for the Indonesian government to improve its regulations regarding e-commerce, especially in the online intermediary services provider. However, to adopt the E-Commerce Directive 2000/31 especially articles 12 to 14, where the exemption of liability is regulated, it needs some adjustment to be suitable for the Indonesian legal system and culture.

Mapping Online Intermediary Liability

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 fast-evolving 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.

The Liability of Australian Online Intermediaries

This chapter provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different doctrines in Australian law employ a range of different tests for determining when an actor will be liable for the actions of a third party. So far, these primarily include cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. These bodies of law are conceptually different and derive from different historical contexts, and the courts have generally applied them in isolation. The chapter shows that the basis on which third parties are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. The chapter shows how the principle limiting devices of liability across all of these schemes—intention, passivity, and knowledge—are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. It is argued here that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence and theory can help to guide and unify the different standards for liability.

Empirical Approaches to Intermediary Liability

This chapter considers what empirical evidence may contribute to the debates around online intermediary liability. What do we need to know in order to frame the liability of intermediaries and, a fortiori, what does the relationship between theory and empirics imply for the wider issue of platform regulation? This chapter evaluates the performance of so-called intermediary liability safe harbours, which have been operating for almost two decades in multiple jurisdictions. The chapter also tackles the problem of transparency of algorithmic decision-making in the ‘black box society’ and how that affects users. In doing so, this chapter reviews the body of empirical studies on copyright intermediary liability during the twenty-year period from 1998 to 2018, drawing on the Copyright Evidence Wiki, an open-access repository of findings related to copyright’s effects. Based on the survey of this body of research, the chapter identifies and discusses five key sub-fields of empirical inquiry pursued so far: 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. Finally, the chapter identifies some of the gaps and limitations in this existing body of scholarship, and offers a number of recommendations for future research.

Remedies First, Liability Second: Or Why We Fail to Agree on Optimal Design of Intermediary Liability

This chapter discusses remedies for online intermediary liability with special emphasis on remedies for intellectual property (IP) infringement. The chapter describes damages and injunctions, their scope and goal, while also analysing the costs of these remedies. In particular, this chapter highlights how IP scholars in the area of intermediary liability have now spent over two decades trying to answer when an intermediary should be liable for its users’ actions. What if throughout that time too much emphasis had been placed on the second-order issue of optimal design? Can that question be answered without first knowing what an intermediary is or should be obliged to perform as a consequence of such legal qualification? This chapter argues that policy debates concerning optimal design of intermediary liability should reflect an inverse order of inquiry in order to elicit useful insights.

Oxford Handbook of Online Intermediary Liability

The theoretical—and market—background against which the intermediary liability debate developed has changed considerably since the first appearance of online intermediaries almost two decades ago. These changes have been reflected—or will soon most likely be reflected—in changing policy approaches. The role of Online Service Providers (OSPs) is unprecedented for their capacity to influence the informational environment and users’ interactions within it. The ethical implications of OSPs’ role in contemporary information societies are raising unprecedented social challenges. The decisions made by these platforms increasingly shape contemporary life. Therefore, whether and when access providers and communications platforms such as Google, Twitter, and Facebook are liable for their users’ online activities is a key factor that affects innovation and fundamental rights. There are emerging legal, policy, and ethical issues facing online intermediaries that have so far received various inconsistent answers even within the same jurisdiction. To better understand the heterogeneity of the international online intermediary liability regime, The Oxford Handbook of Online Intermediary Liability is designed to provide a comprehensive, authoritative, and ‘state-of-the-art’ discussion of this topic. This book will review fundamental legal issues in online intermediary liability, while also describing advances in intermediary liability theory and identifying recent policy trends.

Contractual Liability of Online Platform Operators: European Proposals and established Principles

The contractual responsibility of online platform operators has been subject to an intensive debate in the recent past. While the operators of transaction platforms usually seek the role of mere intermediaries without considerable liability for the proper performance of the main contracts, there is increasing support for extending their responsibility. The ‘Discussion Draft of a Directive on Online Intermediary Platforms’, published by a group of European scholars in 2016, can be seen as an important landmark in this debate. The following article will analyse the provisions of this draft on the platform operators’ liability towards the users of the platform. It shall be argued that strict transparency requirements on the role of the platform operators are to be welcomed but that other proposals for a tightened liability based on the idea of economic influence do not accord with established contractual principles which should hold true for the platform economy as well.