Safe harbour: Should we be worried? An analysis of Clause 20 of the Harmful Digital Communications Bill, and its application to the law of defamation

<p>Liability of internet intermediaries for content created by third parties is a contentious area of defamation law. Recently, the law in New Zealand has begun to depart from English law, and move closer to strict liability. Parliament has responded with a ‘safe harbour’ in clause 20 of the Harmful Digital Communications Bill, which will provide online content hosts with conditional immunity from liability for content created by others. The author supports the creation of a legislative safe harbour for internet intermediaries, but highlights a number of deficiencies with clause 20 as currently drafted. This paper analyses the existing law, including possible defences, and clause 20. It also looks to other jurisdictions’ safe harbours, and concludes with recommendations on how clause 20 ought to be improved.</p>

Safe harbour: Should we be worried? An analysis of Clause 20 of the Harmful Digital Communications Bill, and its application to the law of defamation

<p>Liability of internet intermediaries for content created by third parties is a contentious area of defamation law. Recently, the law in New Zealand has begun to depart from English law, and move closer to strict liability. Parliament has responded with a ‘safe harbour’ in clause 20 of the Harmful Digital Communications Bill, which will provide online content hosts with conditional immunity from liability for content created by others. The author supports the creation of a legislative safe harbour for internet intermediaries, but highlights a number of deficiencies with clause 20 as currently drafted. This paper analyses the existing law, including possible defences, and clause 20. It also looks to other jurisdictions’ safe harbours, and concludes with recommendations on how clause 20 ought to be improved.</p>

Topography of Power: Venice and the Eastern Adriatic Cities in the Century Following the Fourth Crusade

In the thirteenth century, in the aftermath of the Fourth Crusade, Venice became an important power in the Mediterranean, which caused profound change in its political, territorial and economic ambitions. The main strategy of Venice was to maintain the sea route from the northernmost point in the Adriatic to the Levant, and therefore it was crucial to dominate politically over the Eastern Adriatic: the cities there could serve as points of departure or safe harbours in which Venetian vessels could be sheltered and supplied with merchandise, food, water, and manpower. One of the ways to incorporate the Eastern Adriatic cities into a common area of governance was to construct recognizable public buildings, and to introduce and standardize a legal and administrative order that was mainly adapted to the central political entity, but also served the local urban communities. This paper follows the changes that were directly or indirectly mirrored in the urban structure of the cities during the thirteenth century: primarily the design of urban spaces (especially public ones) and the construction of public buildings linked to governance, defence, trade or administration. During the thirteenth century, one can follow the development of Venetian ambitions and their focus on particular areas or activities (economic, military) in the state, as well as the activities of Venetian patricians holding the governor’s offi ce. Naturally, the local circumstances and the local population had a crucial impact on the formation of urban space, but this paper focuses primarily on the role of the Venetian administration in this respect.

8 Close-Out Netting and Safe Harbours

This chapter studies the early termination of collateral transactions. It is in this context that the transactions must prove their worth, i.e. must show they indeed reduce or limit the credit risk the collateral taker runs on the collateral provider. To achieve this result, contractual techniques have been developed that have subsequently been sanctioned and protected by the law. The chapter looks at the legal framework regulating those contractual techniques. However, the early termination of collateral transactions and the enforcement by the collateral taker of its rights in the assets provided as collateral involve specific legal issues. The majority of collateral transactions provide for 'close-out netting' as a way of enforcement; close-out netting thus replaces traditional enforcement of security interests, such as public auction. In addition, the termination of collateral transactions, and close-out netting in particular, in multiple jurisdictions is protected by 'safe harbours', i.e. shielded from insolvency law rules that would otherwise be applicable.

Financial Collateral

This book draws together all of the property law, regulatory and contractual issues relevant to financial collateral transactions. Collateralized finance transactions played a major role in the bankruptcy of Lehman Brothers and the near-failure of AIG during the early months of the global financial crisis, and they are being increasingly recognised as being integral to the stability of the global financial system. The book provides a detailed legal analysis of the types of transactions which make up collateralised financing transactions and examines them in their commercial context. Recognising that financial collateral transactions are often global in nature, the book covers the legal position in the UK, US, and the EU with specific relevance to practice in the Netherlands, Germany, and Belgium. The book opens with an explanation of how financial collateral transactions are construed, including the relevant standard contract forms. The following chapters discuss the major legal issues and practical considerations, as well as a number of specialist concepts such as safe harbours, 'minimum floors' and securities custody. The book brings together consideration of the European Securities Financing Regulation, the Collateral Directive, and relevant parts of the Bank Recovery and Resolution Directive.

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.

From Liability Trap to the World’s Safest Harbour: Lessons from China, India, Japan, South Korea, Indonesia, and Malaysia

This chapter compares the intermediary liability rules of six major Asian countries and highlights how there seems to be confusion on their nature, although the commentators of all countries describe their respective rules as ‘safe harbours’ resembling section 512 of the US Digital Millennium Copyright Act. The chapter describes how China and South Korea inadvertently created a liability-imposing rule instead of a liability-exempting rule. Further, the chapter reviews India and Japan’s statutes that set out liability-exempting regimes closely resembling the EU e-Commerce Directive. India’s 2011 Intermediary Guidelines generate a strong cloud of obligations on intermediaries that threatens to convert the whole system into a liability-imposing one. However, that threat had an impact on the jurisprudence with the 2013 Shreya Singhal decision making the Indian system one of the world’s safest harbours. This chapter further discusses the importance of distinguishing between a liability-imposing rule and a liability-exempting one in the light of other Asian examples. Indonesia’s safe harbour draft regulation announced in December 2016 seems to move towards the dangerous model of both China and South Korea. Malaysia’s copyright notice and takedown appears to follow the US model closely but has a structure that allows the same misunderstanding made by South Korean regulators.