Giancarlo Frosio, Stanford Law School - CIS
Whether and when access providers and communications platforms like Google, Twitter and Facebook are liable for their users’online activities is a key factor that effects innovation and free speech. There are emerging legal, policy and ethical issues facing online intermediaries. Unfortunately, with globalized online service providers operating across the world in an interdependent digital environment, inconsistencies across different regimes generate legal uncertainties that undermine both users’rights and business opportunities.
To better understand the heterogeneity of the international online intermediary liability regime, at Stanford CIS, with the collaboration of an amazing team of contributors across five continents, I have developed and launched the World Intermediary Liability Map (WILMap), https://cyberlaw.stanford.edu/our-work/projects/world-intermediary-liabi..., a detailed English-language resource comprised of case law, statutes, and proposed laws related to intermediary liability worldwide. Since its launch in July 2014, the WILMap has been steadily and rapidly growing. Today, the WILMap covers almost one hundred jurisdictions in Africa, Asia, the Caribbean, Europe, Latin America, North America and Oceania. In an effort to make the WILMap an increasingly valuable resource for activists, industry players, researchers, and the general public, the WILMap website will be soon updated with enhanced usability and data aggregation features. The creation of a global network of WILMap contributors also allowed to promote synergies with global platforms and free expression groups to advocate for policies that will protect innovation and other user rights. I am always in search of opportunities to expand the reach of the WILMap and create new synergies. To that end, I look very much forward to participating to the IPP2016 ""The Platform Society"" Conference.
Mapping online intermediary liability worldwide serves the goal of understanding responsibilities that OSPs bear in contemporary information societies. Most creative expression today takes place over communications networks owned by private companies. OSPs’role 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. Apparently, as I argue, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. While private parties’self-awareness of their own duties and obligations might appear a laudable goal to achieve, the retraction of the public is not. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’self-intervention to police allegedly infringing activities in the Internet. Due process and fundamental guarantees get mauled by technological enforcement, silencing speech according to the mainstream ethical discourse’and bringing about novel forms of cultural imperialism. Several emerging legal trends in the intermediary liability domain reflect this change in perspective, such as indeed voluntary agreements and private enforcement, but also other legal arrangements that make more prominent the role of online intermediaries. This is apparently the case of three-strike legislations, blocking orders dealt almost entirely between intermediaries and righstholders, and administrative enforcement of intermediary liability online.
After introducing the WILMap’and the surrounding landscape of recent projects related to intermediary liability’this article aims at discussing advancement in intermediary liability theory and describing emerging regulatory trends. Mapping online intermediary liability worldwide entails the review of a wide-ranging topic, stretching into many different areas of law and domain-specific solutions. The WILMap has become a privileged venue to observe emerging trends in Internet jurisdiction and innovation regulation, enforcement strategies dealing with intermediate liability for copyright, trademark, and privacy (right to be forgotten) infringement, and Internet platforms’obligations and liabilities for defamation, hate and dangerous speech.
Thanks to the data set collected in the WILMap, I move to identify and discuss recent trends in intermediary liability policy. I look into the increasing number of cracks’such as proposed reforms for the introduction of a ‘duty of care’for online intermediaries, ‘notice and stay-down’regimes, etc. as part of the European Digital Single Market Strategy’that appear in safe harbour arrangements serving so far as a dam to liability of online intermediaries. In the same vein, I consider recent case law imposing proactive monitor obligations on intermediaries’such as in the case of Delfi decided by the ECHR, Allostreaming in France, the Max Mosely case in multiple European jurisdictions, Dafra in Brazil, RapidShare in Germany, or Baidu in China’with the notable exception of the Belen case in Argentina. These cases uphold proactive monitoring across the entire spectrum of intermediary liability subject matters: intellectual property, privacy, defamation, and hate/dangerous speech. Next, I look into blocking orders against innocent third parties as an additional relevant trend in intermediary liability. Blocking orders have become increasingly popular in Europe, especially to contrast online copyright’and recently also trademark’infringement. However, they have been widely used also in other jurisdictions, especially by administrative authorities and in connection also with amorphous notions of public order, defamation, and morality. In this respect, the emergence of administrative enforcement of intermediary liability online appears to me another well-marked trend in recent internet governance. Multiple administrative bodies’such as AGCOM in Italy, Roskonomazor in Russia, TIB in Turkey, KCC in South Korea, and many others’have been put in charge of enforcing a miscellaneous array of infringements online’primarily against intermediaries and absent any judicial supervision. Finally, I discuss core trends, such as voluntary and private enforcement of allegedly illegal content online and extra-territorial enforcement of intermediaries’obligations. Extra-territorial enforcement’recently on the rise and making the headlines for the worldwide enforcement of the ‘right to be forgotten’by the French CNiL’might potentially break the Internet and is telling of a disconnection between physical and digital governance of information and content that will hardly go away, at least for some time.