Oxford Handbook of Online Intermediary Liability

923 Pages·2020·11.087 MB·English

by  Giancarlo Frosio (ed)

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Edited by Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law Online Publication Date: May 2020
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(p. iv)
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
Editor’s Note: A Dialogue on the Role of Online Inter­
mediaries  
Edited by Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law Online Publication Date: May 2020
Editor’s Note: A Dialogue on the Role of On­
(p. ix)
line Intermediaries
IN pursuit of an answer to the online intermediary liability conundrum, The Oxford Hand­
book of Online Intermediary Liability has gathered together multiple voices that have con­
tributed greatly to this emerging debate in the last few years. I have encountered or
came to know about most of my co-authors a few years ago at the time of my residence at
the Stanford Center for Internet and Society where I served as the first Intermediary Lia­
bility Fellow. The idea for this Handbook was the result of other projects that we have run
together, including the World Intermediary Liability Map, and the need to crystallize an
emerging field of research. This field of research has grown exponentially since this
Handbook was first envisioned. Online intermediary liability has now become a pervasive
issue on the agenda of governments, courts, civil society, and academia and in the last
few years legislation, case law, and initiatives dealing with the liability of online interme­
diaries have followed at an astounding pace.
The role of online service providers (OSPs) is unprecedented in relation to their capacity
to influence users’ interactions in the infosphere.1 Online intermediaries mediate human
life in a virtual brave new world that reflects and augments our physical realm. ‘Internet
intermediaries are crucial for how most people use the Internet,’ Dan Jerker Svantesson
noted.2 Ubiquitous platforms dictate our daily routine: searching for information on
Google, getting a taxi on Uber, shopping on Amazon Fresh, making payments via PayPal,
collaborating on Google Docs, storing documents on Dropbox, taking up employment
through Upwork, discussing trendy topics on Twitter, sharing videos on YouTube, or post­
ing pictures on Instagram. In particular, most creative expression today takes place over
communications networks owned by private companies. The decentralized, global nature
of the internet means that almost anyone can present an (p. x) idea, make an assertion,
post a photograph, or push to the world numerous other types of content. Billions of peo­
ple possess multiple connected portable devices. People communicate their experiences
on the go through multimedia social networking services (e.g. Facebook, Instagram), on­
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
line file repositories (e.g. Flickr, Dropbox, Google Photos), and various kinds of video-
sharing platforms (e.g. YouTube, Vimeo, Dailymotion). According to Danny Friedmann, ‘in
China, en route to become the biggest economy in the world, at the end of 2017, it was
estimated that more than half of the population (772 million people) had access to the in­
ternet. Goods are traded between businesses and consumers, between consumers, and
between businesses, at enormous online market platforms, such as those of the Alibaba
Group’.
The ‘information society’ with its 2.5 quintillion bytes of data created each day3 has slow­
ly morphed into the ‘platform society’. But there is more to it. Perhaps unnoticed, our so­
ciety has transformed into an ‘intermediated society’. Platforms and OSPs filter our net­
worked life, shape our experiences, define our memories—and even remind us of a (se­
lected) few of them. ‘They contribute to inform the space of opportunities in which indi­
viduals and societies can flourish and evolve,’ Mariarosaria Taddeo stresses, ‘and eventu­
ally impact how we understand reality and how we interact with each other and with the
environment’. The decisions made by these platforms increasingly shape contemporary
life. ‘As leading designers of online environments, OSPs make decisions that impact pri­
vate and public lives, social welfare and individual wellbeing.’
For Christina Angelopoulos, ‘the prevalence of intermediation in modern electronic com­
munications makes [intermediary liability] an increasingly significant aspect of an in­
creasing wide array of different areas of information law’. Eleonora Rosati adds that ‘in
this sense Recital 59 of the Information Society Directive, which stresses how, in a con­
text of this kind, intermediaries may be indeed best placed to bring infringements to an
end, helps understand the need for intermediaries’ involvement in the enforcement
process’. Also Richard Arnold develops this point by noting that ‘online exploitation
makes infringement of IPRs easy, but makes enforcement of IPRs against the sources of
such infringements difficult (eg because of jurisdictional issues)’, therefore ‘IPR owners
increasingly find that it is more practical and effective to target online intermediaries
both with claims for direct and accessory liability and with claims for intermediary liabili­
ty’. Frederick Mostert recognizes that ‘intermediary liability for online service providers
has become relevant because of an attempt … to deal with the volume and velocity of ille­
gal online activities by Bad Actors’. But, Mostert adds, this strategy is suboptimal: ‘culpa
is rarely present at the platform end-point and intermediaries are virtually in all cases not
the source of the problem’. However, ‘dealing with the source of the problem is exacer­
bated by the anonymity issue in the online world, making it very difficult to track and
trace the identity of the Bad Actors themselves’. Hence, ‘the last resort efforts to try and
stop the illegal activities at the end-point—the platform level’.
(p. xi) Therefore, 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 affects innovation and fundamental rights. Transaction costs deriving from their lia­
bility shape platforms’ decisions and policies, algorithms’ development, and, finally, the
architecture of the infosphere. Kylie Pappalardo and Nicolas Suzor clarify that ‘intermedi­
ary liability matters because the rules of intermediary liability structure the internet.
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
What internet users can and cannot see and do is largely dictated by the laws that apply
to the online service providers that mediate their experience’. According to Miquel
Peguera, ‘the way business models are conceived and developed closely hinges on the le­
gal framework that governs their duties and that determines the conditions under which
they may or may not be sheltered from liability’, so that ‘intermediary liability ends up
shaping the availability of new digital services and affects citizens’ daily lives in multiple
ways’. Jaani Riordan reminds of the tension that lies in setting up liability against online
intermediaries:
If intermediary liability rules are too strict, they risk stifling new and useful ser­
vices and restricting market participation to the largest platforms—those best able
to afford lawyers, compliance costs, and political lobbying. At the other extreme,
rules which immunise intermediaries against any need to act could make it impos­
sible or impracticable for claimants to enforce their rights, encouraging the
spread of disinformation and other harmful material.
On one side, as Marco Ricolfi suggests, ‘the adoption of intermediary liability exacerbates
the difficulties in preserving freedom of innovation [and], in terms of competition policy, it
risks creating barriers to newcomers’. On the other side, Eduardo Bertoni stresses that
‘depending on the regulation that could be enacted, the impact on fundamental rights
might be positive or negative’. For Peguera, the way in which we arrange liability has ‘an
immediate effect on the exercise of fundamental rights on the Internet, particularly in
terms of freedom to access and impart information and in terms of privacy and data pro­
tection’. According to Kristofer Erickson and Martin Kretschmer, ‘the legal regime of no­
tice-and-takedown which has been in place for 20 years was conceived as a means of bal­
ancing legitimate interests of media rightholders, platform innovators and online users’.
However, Christophe Geiger and Elena Izyumenko add that:
once intermediaries are asked to do more in their new role of active … enforcers,
impartial enforcement can be at risk, raising the questions with regards to compli­
ance, among others, with the fundamental rights of both Internet users and inter­
mediaries themselves. This situation entails a serious risk of intermediary being
‘overzealous’ in order to avoid liability and to block access to content that is made
available in a perfectly legal manner.
OSPs are subjected to increasing pressure by governments and interest groups which are
seeking to control online content by making use of their technical capacities. In this
(p. xii) regard, Niva Elkin-Koren and Maayan Perel highlight that ‘they offer a natural
point of control for monitoring, filtering, blocking, and disabling access to content, which
makes them ideal partners for performing civil and criminal enforcement’. As Emily Laid­
law develops:
Intermediaries occupy a critical regulatory role, because they have the capacity to
control the flow of information online in a way that others, including states, can­
not. Thus, significant energy is devoted by lawmakers to strategizing how to cre­
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
ate laws that capitalize on intermediaries’ capacity to regulate to solve many prob­
lems posed by internet use.
However, ‘intermediary obligations should not be confused with those of states’. This is
hardly the case nowadays. For example, as Nicolo Zingales notes, ‘intermediary liability
of OSPs is particularly relevant in the African continent because of the increasing pres­
sure on intermediaries to fulfil broad and open-ended public policy mandates, and poten­
tially affecting both technological progress and the creation of local content’. Multiple ju­
risdictions follow the same path. As Bertrand de La Chapelle and Paul Fehlinger argue,
the intermediary liability debates are exacerbated by a looming risk of ‘a legal arms race,
in which states resort to an extensive interpretation of territoriality criteria over cross-
border data flows and services’.
In an ‘invisible handshake’ between public and private parties, faced with semiotic regu­
lation on an unprecedented scale, enforcement looks once again for an ‘answer to the ma­
chine in the machine’.4 Sophisticated algorithms and company policies enable and con­
strain our actions. These algorithms take decisions reflecting policy’s assumptions and in­
terests that have very significant consequences for society at large, yet there is limited
understanding of these processes. This is critical, Ben Wagner notes, as ‘understanding
the mechanism of implementation is key to understanding the nature of speech that is en­
abled by it’. Sergei Hovyadinov notes how ‘the framework of intermediary liability estab­
lished in the EU and the US 15–20 years ago is not sufficient anymore to fight illegal con­
tent, especially terrorist, which because of the volume and the speed of its dissemination
calls for a more proactive approach, with elements of automation and proactive monitor­
ing’. ‘Intermediary liability’, Hovyadinov continues, ‘is thus shifting from a reactive “no­
tice-and-take down” regime to “intermediary accountability” [as Martin Husovec termed
it] based on new expectations from governments and civil society as to the role online
platforms should proactively perform’. Christophe Geiger and Elena Izyumenko highlight
the ‘danger that intermediaries have recourse to automated systems, leading to a situa­
tion where machines and algorithms would become the decision-makers of what is avail­
able or not on the Internet’. Of course, ‘this privatisation of justice is highly problematic
in a democratic society, in particular with regard to the constitutional legal framework’.
Therefore, Niva Elkin-Koren and Maayan Perel conclude that (p. xiii) ‘with the rise of algo­
rithmic enforcement, data driven economy, centralized architecture and market concen­
tration, the new regulatory powers of online platforms are challenging the rule of law’.
To continue this dialogue on the role of online intermediaries in modern society, this
Handbook will present multiple scholarly perspectives on the major themes in intermedi­
ary liability and platform governance.
The Handbook discusses fundamental legal issues in online intermediary liability, while
also describing advances in intermediary liability theory and identifying recent policy
trends. Part I features an introductory chapter that will serve as a blueprint for the con­
sistent development of other chapters as it sets out in advance the most relevant trends
according to which the structure of the book has been generated. Part II provides a taxon­
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
omy of internet platforms, a general discussion of a possible basis for liability, and a re­
view of remedies. In addition, Part II introduces the discussion of the fundamental rights
implications of intermediary liability and considers the ethical ramifications of the role of
online intermediaries. Part III presents a jurisdictional overview of intermediary liability
safe harbours and highlights systemic fragmentation. In this respect, Part III will also fo­
cus on enhanced responsibilities that multiple jurisdictions incresingly impose on online
intermediaries. Part IV provides an overview of domain-specific solutions, including inter­
mediate liability for copyright, trade mark, unfair competition, and privacy infringement,
together with internet platforms’ speech-related obligations and liabilities. Part V reviews
intermediary liability enforcement strategies by focusing on emerging trends, including
proactive monitoring obligations, blocking orders, and the emergence of administrative
enforcement of online infringement. Part VI discusses an additional core emerging trend
in intermediary liability enforcement: voluntary measures and private enforcement of al­
legedly illegal content online are shifting the discourse from intermediary liability to in­
termediary responsibility or accountability. International private law issues are addressed
in Part VII with special emphasis on extraterritorial enforcement of intermediaries’ oblig­
ations.
Finally, I would like to express my gratitude to my co-authors for completing this truly
‘monumental’ study that contributes fundamentally to research in the field. Special
thanks also go to the team at Oxford University Press for giving us the opportunity to
publish this volume, helping to define the trajectory that it has finally taken, and for all
the editorial support. I would also like to thank my wife, Hong, and my parents, Nuccia
and Clemente, for their continuous support. Nothing would be possible without the happi­
ness that my family gives to me.
June 2019
Notes:
(1) See Luciano Floridi, The Fourth Revolution—How the Infosphere is Reshaping Human
Reality (OUP 2014) (arguing that after the Copernican, Darwinian, and Freudian revolu­
tions, humans are once again forced to rethink their role as they must now interact with
virtual entities and agent in a wholly new medium, the infosphere).
(2) The following considerations are the result of reflections collected via email exchange
with my co-authors in the last few months. The quoted passages are taken from this ex­
change, which is on file with the author.
(3) See Domo, ‘Data Never Sleeps 5.0’ <https://www.domo.com/learn/data-never-
sleeps-5>. Note that all hyperlinks in the Handbook were last accessed on 10 June 2019.
(4) Charles Clark, ‘The Answer to the Machine is in the Machine’ in Bernt Hugenholtz
(ed.), The Future of Copyright in a Digital Environment (Kluwer Law Int’l 1999) 139 (dis­
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Editor’s Note: A Dialogue on the Role of Online Intermediaries
cussing the application of digital right management systems to enforce copyright in­
fringement online).
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Notes on Contributors
Notes on Contributors  
Edited by Giancarlo Frosio
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law Online Publication Date: May 2020
Notes on Contributors
(p. xiv) (p. xv)
Christina Angelopoulos

is a Lecturer in Intellectual Property Law at the University of Cambridge and a mem­
ber of the Centre for Intellectual Property and Information Law (CIPIL). Email:
[email protected].

Richard Arnold

is a Judge of the Court of Appeal of England and Wales.

Eduardo Bertoni

is the Director of the Access to Public Information Agency in Argentina, Director of
the Post-graduated Program on Data Protection at Buenos Aires University School of
Law, Argentina, and Global Clinical Professor at New York University School of Law,
New York. Email: [email protected] and [email protected].

Annemarie Bridy
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Notes on Contributors

is the Allan G. Shepard Professor of Law at the University of Idaho College of Law, an
Affiliate Scholar at the Stanford Law School Center for Internet and Society (CIS),
and an Affiliated Fellow at the Yale Law School Information Society Project (ISP).
Email: [email protected].

Bertrand de La Chapelle

is the Executive Director and Co-founder of the global multistakeholder organization
Internet & Jurisdiction Policy Network. Email:
[email protected].

Alessandro Cogo

is Associate Professor at the University of Turin Law School and Director of the Mas­
ter of Laws in Intellectual Property jointly organized by the World Intellectual Proper­
ty Organization and the Turin University. Email: [email protected].

Graeme Dinwoodie

is the Global Professor of Intellectual Property Law at Chicago-Kent College of Law.
Email: [email protected].

Niva Elkin-Koren

is a Professor of Law at the University of Haifa, Faculty of Law and a Faculty Asso­
ciate at the Berkman Klein Center at Harvard University. She is the Founding Direc­
tor of the Haifa Center for Law & Technology (HCLT), and a Co-director of the Center
for Cyber, Law and Policy. Email: [email protected].

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