Intermediary Liability and Fundamental Rights

This chapter sets the stage for considering the tension between intermediary liability and fundamental rights with special emphasis on the European legal framework. Competing fundamental rights, such as freedom of expression, privacy, freedom of business, and the right to property are entangled with the intermediary liability conundrum. Policymakers are still in search of a balanced and proportional fine-tuning of online intermediaries’ regulation that might address the miscellaneous interests of all stakeholders involved, with special emphasis on users’ rights. In this context, the increasing reliance on automated enforcement technologies, which will be the topic of further review in multiple chapters throughout the Handbook, might set in motion dystopian scenarios where users’ fundamental rights are heavily undermined.

The Civic Role of OSPs in Mature Information Societies

Over the years, the discussion concerning the responsibilities of online service providers (OSPs) has gone from defining measures that OSPs should deploy to correct their market bias and ensure a pluralistic web, to the impact that OSPs have on the internet, on the flourishing of democratic values, and on societies at large. The debate spans different fields, from information and computer ethics, corporate social responsibilities, and business ethics, to computer-mediated communication, law, and public policy. Topics of analyses range from biases and skewing of information indexed by search engines, the protection of users’ privacy and security, to the impact of OSPs on democratic processes, and their duties with respect to human rights. This chapter investigates the ethical implications of intermediary liability. First, it describes the debate on the moral responsibilities of OSPs with respect to managing access to information and human rights. It then analyses the role and the nature of the responsibilities of OSPs in mature information societies. The chapter concludes its review by applying Floridi’s soft ethics to consider what responsibilities the civic role of OSPs entails and how they should discharge them.

The Equustek Effect: A Canadian Perspective on Global Takedown Orders in the Age of the Internet

This chapter examines the Canadian Equustek case, tracing the development of internet jurisdiction cases in the late 1990s to the current legal battles over the appropriate scope of court orders that wield far greater effect than conventional, domestic-based orders. The chapter begins by recounting the Yahoo France case, the internet jurisdiction case that placed the conflict challenges squarely on the legal radar screen. It continues with a detailed examination of the Equustek decision and its aftermath, including efforts by Google to curtail the effect of the Canadian court order by obtaining a countervailing order from a US court and the use by Canadian courts to extend the ruling to other internet platforms and online issues. It also cites one additional risk with overbroad national court orders related to online activity, namely the prospect of further empowering large internet intermediaries, who may selectively choose which laws and orders to follow, thereby overriding conventional enforcement of court orders and national regulation.

Monitoring and Filtering: European Reform or Global Trend?

This chapter 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 focuses on the recent EU copyright law reform. Article 17 of the newly enacted EU Directive on copyright in 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 analysing 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.

Who are Internet Intermediaries?

This chapter considers several different ways in which we can better understand the category of online intermediaries. It does so by acknowledging important scholarly efforts to produce a detailed taxonomy of online intermediaries. An analysis of positive law in a number of countries reveals some lessons about the meaning of the term, as well as alternative legal categories of online actors that might be seen as subsets of, or overlapping with, ‘online intermediaries’. This chapter also pursues a more typological approach to the classification question, while expounding on the important role that Riordan’s functional taxonomy (or those of others) might play. Clearly, law must have regard to empirical reality of how actors behave in constructing categories. But those legal categories are often driven by other considerations, as will be our policy debates. By adopting a somewhat more conceptual approach, this chapter hopes to develop understandings that will allow debate about the liability of online intermediaries across borders and across time, given that the technological features and social role of online intermediaries are constantly evolving.

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 Impact of Free Trade Agreements on Internet Intermediary Liability in Latin America

This chapter discusses the impact of free trade agreements (FTAs) on intermediary liability in Latin America, with special emphasis on the Digital Millennium Copyright Act’s (DMCA) provisions that have been included into every bilateral FTA the United States has entered into since 2002, thus promoting their inclusion in the national law of other countries. However, these provisions are controversial, and whether they drive the internet economy or create a more restrictive online space is a matter of debate. This chapter analyses the impact of such provisions in Latin American countries and the state of their implementation in national jurisdictions. In particular, this chapter reviews implementation and proposed implementation of the DMCA model in Chile, Costa Rica and other CAFTA bloc countries, Colombia, and Peru. It also discusses the failure of the Trans-Pacific Partnership Agreement to create new intermediary liability rules and how the same language was ultimately included in the revision of the North American Free Trade Agreement (NAFTA), which became the US–Mexico–Canada Agreement (USMCA).

Internet Jurisdiction and Intermediary Liability

This chapter seeks to set the scene and make some proposals for how we may make progress in the field of internet jurisdiction. For this purpose, the chapter will focus on three examples where the matter of internet jurisdiction is a major concern for internet intermediaries. The first relates to the validity of the terms of service that internet intermediaries typically impose on their users, and which typically contain important provisions regarding jurisdiction and applicable law. The second example relates to situations in which law enforcement agencies seek access to user data held by internet intermediaries. Such situations give rise to important matters of jurisdiction, not only where the requesting law enforcement agency and the internet intermediary are based in different countries, but may also—as was illustrated in the well-known Microsoft Warrant case—give rise to such issues where the requested data is stored outside the country in which both the law enforcement agency and the internet intermediary are based. The third example relates to the matter of geographical scope where an internet intermediary is required to remove, block, take down, delist, de-index, or de-reference content.

Addressing Infringement: Developments in Content Regulation in the US and the DNS

The reach of privately ordered online content regulation is wide and deepening. It is deepening with reference to the internet’s protocol stack, migrating downward from the application layer into the network’s technical infrastructure, specifically, the Domain Name System (DNS). This chapter explores the recent expansion of intellectual property enforcement in the DNS, with a focus on associated due process and expressive harms. It begins with a technical explanation of the operation and governance of the DNS. It goes on to discuss existing and proposed alternative dispute resolution (ADR) regimes for resolving intellectual property complaints involving domain names. In doing so, it compares the long-running Uniform Dispute Resolution Policy (UDRP) for adjudicating trademark cybersquatting claims to newer ADR programmes targeting copyright infringement on websites underlying domain names.

Secondary Copyright Infringement Liability and User-Generated Content in the United States

In the United States, the question of whether and when online service providers can be held liable for copyright infringement committed by their users has been one of the most heavily litigated controversies of the digital age. This chapter answers these questions by reviewing the common law doctrine of secondary copyright infringement and all relevant case law behind it. It focuses on the interpretation of the Digital Millennium Copyright Act’s (DMCA’s) safe harbours before US courts, with special emphasis on the notion of actual and ‘red flag’ knowledge, wilful blindness, right and ability to control users’ behaviour, and inducement. This chapter focuses in particular on user-generated content (UGC) platforms by looking into the effects of the DMCA on the UGC market and the technological measures implemented to curb infringement on UGC platforms. The chapter also provides a review of legislative proposals to amend the legal framework that the DMCA implemented more than two decades ago and runs a comparative analysis with other similar international legislative frameworks.