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The Liability of Intermediaries

1. Chapter Overview
2. Background and Context
   1. Users’ Interests
   2. A Divergence From Established Principles
3. The Trade-Offs Between Efficiency, Liberty, Innovation, and User Rights

Chapter Overview

This Chapter introduces you to the concept of intermediary liability before explaining the responsibility of intermediaries and the trade-offs between efficiency, liberty, innovation and user rights around internet governance and regulation more broadly. The fundamental and overarching question of this Chapter is what behaviour does (and should) make an intermediary liable?

Background and Context

Video Overview by Nic Suzor:Intermediary Liability

The internet has radically changed the way people communicate. Technological developments have drastically reduced the costs of creating content and publishing it to a large audience. The rise of blogs, discussion fora, and social media has enabled and empowered individuals to communicate directly with others all around the world. Through effective search engines and social sharing, the content that individuals post also becomes visible and discoverable to a potentially massive audience, sometimes far beyond the intended reach of the primary poster.

This democratisation of speech is something to celebrate. User-generated content and user innovation signal a massive potential step forward in free speech and in economic productivity. When Time Magazine named ‘You’, the user, as its Person of the Year in 2006, it celebrated a revolution signified by an “explosion of productivity and innovation” that brought “millions of minds that would otherwise have drowned in obscurity […] into the global intellectual economy”.¹ Clay Shirky’s book ‘Here comes everybody’² captures the sense of optimism that this revolution may liberate and empower amateurs everywhere to participate in the creation and distribution of media. This phenomenon is often seen as a revolution in democracy itself, removing the power to control discourse and influence thought, culture and politics from the hands of a small number of global corporations and redistributing it to ordinary internet users the world over.

At the same time, however, the disintermediation of speech makes legitimate, democratic regulation by states much more difficult. By facilitating direct sharing between users, the internet largely bypasses the gatekeepers of the mass media era: the publishers, broadcasters, and producers who have been the traditional targets of regulation. Laws concerning content standards, sub judice contempt of court, and incitement to crime, for example, have all historically been overwhelmingly applied against print publishers and broadcasters, rather than individuals. In the online environment, by contrast, new intermediaries are usually not legally responsible for determining the content they carry. Individuals are responsible for what they post, but regulating the behaviour of individuals online is extremely difficult. The global nature of online networks, the potential anonymity of speakers, the lack of editorial control, and the sheer volume of communications makes it difficult to enforce the law in direct legal actions against wrongdoers.

Users’ Interests

Video Overview by Kylie Pappalardo:The Interests of Users

When we consider the regulation of online intermediaries, it is important that we do not focus solely on the technological and financial impacts of regulation on the intermediaries themselves. These are important considerations, but they are not the whole story. It is also critical to ask: whom are these laws really targeting?

Often, the Law’s Target Is Not the Intermediary Itself

Online copyright infringement provides a useful example of how lawmakers often use intermediary liability to attempt to regulate other societal actors. When the content industry and lawmakers attempt to make ISPs responsible for copyright infringement that occurs over their networks, what they really care about is the flow on effect on users. The content industry wants ISPs to take certain actions against their users, such as sending warning notices or suspending accounts. The industry hopes that ISPs will be compelled to do this if they face legal liability for not impeding infringement. The real targets of this regulation, then, are end users.

There are valid reasons for targeting intermediaries rather than suing the end users themselves. On the internet, users are often difficult to identify, contact and bring legal action against. Plus, they are many. Chasing individual users has been described as “a teaspoon solution to an ocean problem”.³

Thus, there are legitimate efficiency reasons for suing just one entity – the intermediary – that might be able to have a real impact on the proliferation of unlawful activity online.

Users have their own interests, however, such as being able to access content for education, self-development and self-expression. Users have interests in being able to creatively play with content to produce remixes, mash up and commentary. They have autonomy interests in being able to view or listen to content at times that are convenient for them. Users have their own speech interests. These interests can be easily forgotten in intermediary regulation, because we are trained to think of legal disputes as two party problems – the plaintiff on one side (in copyright cases, this is the content industry) and the defendant on the other (the intermediary). In this two-party framework, users do not have an opportunity to defend themselves or to present their interests. Often, courts or lawmakers simply presume that the majority of users are acting unlawfully and proceed with regulation on that basis.

This is a concern because, as noted above, regulation can fundamentally impact users and how they are able to interact online. When courts and lawmakers are dictating the terms of the technology that allows people to access and engage with content online, then it is important that they recognise the full social consequences of those decisions. As Mark Lemley and R. Anthony Reese have argued, actions against intermediaries lack the granularity of suits against individuals:⁴

For example, in the Grokster case, the Central District of California had to decide either to ban the distribution of software that permits users to connect to the Morpheus [file sharing] network or not to ban it. That essentially binary choice is ill-suited to the realities of the Morpheus network, over which individual end users trade lots of plaintiffs’ content, trade some content that either is in the public domain or for which the copyright owner has given permission, trade some files of a type that tends not to be copyrighted at all, and trade significantly more content that might be copyrighted, but whose owner has neither granted permission for its use nor sought its removal by joining in the lawsuit.

In other words, cases against intermediaries are ill-suited to properly considering the fact that people act in different ways for different reasons – some lawful and some not – often over the same technology. When the decision is as blunt as to shut down a site or not shut down a site, or disconnect a user from the internet or not disconnect them, then we risk sacrificing all the legitimate and beneficial interactions in favour of regulating the unlawful ones.

A Divergence From Established Principles

Video Overview by Kylie Pappalardo:Duty to Rescue

Much of online regulation focuses on regulation of or through intermediaries. It is important to be aware, however, that this is not the norm in the offline world.

The liberal basis of our legal system means that the law is comfortable with imposing negative duties, such as the duty not to harm others, but is less comfortable with imposing positive duties, such as a duty to affirmatively help others. We see this clearly in criminal law, in the prohibitions against bodily harm and assault, but it is also apparent in tort law, where duties are generally imposed to prevent people acting in ways that harm others (negligently, recklessly). The law will not generally force someone to help another, however. The common articulation of this rule is that there is no general duty to come to the rescue of another.⁵ There is also no general duty to exercise control over another person in order to prevent harm to a third party.

An important reason that the law does not impose liability for the failure to help someone else is a deep respect within the law for individual liberty. ⁶

Under common law, individuals are free to act as they choose so long as those actions do not positively harm others. The law will not interfere with a person’s liberty by coercing her to act in aid of another where she has had no role in producing the other’s misfortune. Courts have consistently held that the common law does not impose positive duties to act based simply on one party’s need and another party’s ability to meet that need.⁷

An interesting question that arises with respect to internet intermediaries relates to the basis on which we purport to regulate them:

Are we asking intermediaries not to harm, or are we asking them to ‘rescue’ someone from another person’s harm?

If what we are doing is asking intermediaries to come to a person’s aid from third parties who are inflicting harm, then we must recognise that the conceptual legal basis for doing so is not particularly strong.

In tort law, there are some exceptions to the general rule that there is no duty to rescue another. One exception relates to a defendant’s control over a third party who causes the plaintiff harm. Where a defendant has a significant level of control, then we may require them to exercise that control to prevent harm. The law generally recognises only a limited number of relationships giving rise to a duty to control, however; these include relationships between parents and children, school authorities and pupils, and prison wardens and prisoners. It is clear from these examples that the relationships generally involve not only control on one side, but dependence or vulnerability on the other.

Another exception applies where the defendant has had some role in creating the risk from which the plaintiff needs rescuing. Then we can say that the defendant has actually contributed to the harm suffered by the plaintiff. Again, we see the law’s emphasis on personal responsibility at play. One object of tort law is to deter reckless and harmful behaviour. If a defendant has not caused the harm suffered by the plaintiff, then there is no reason to attempt to alter his actions through the imposition of liability; there is no unreasonable behaviour to deter. If, however, he has contributed to the risk of harm, then we can comfortably impose liability to deter that behaviour.

So far as online intermediaries are concerned, plaintiffs will try to argue that the intermediary has the requisite control over end users or that the intermediary has had a role in producing the wrong committed against them. As you proceed through the content on regulating intermediaries with respect to defamation, copyright and other laws, you will see versions of these arguments arise again and again. The questions that continue to arise, the questions that you must ask, and the questions which have still not been satisfactorily answered by the courts are:

• What does “control” look like and how much is needed to ground liability?
• Which acts “contribute” to the risk of harm in the online environment and what role must an intermediary play before we compel them to act against their users?

To put this into context, think again of the example of online copyright infringement. Different intermediaries play different roles in copyright infringement. ISPs provide access to the internet over which people download. Other intermediaries provide file-sharing software or websites that enable sharing. Search engines help people to find infringing websites. How do we decide when one intermediary is “contributing” to infringement and another is not? This is what we will be exploring throughout this module on intermediary regulation.

The Trade-Offs Between Efficiency, Liberty, Innovation, and User Rights

Video Overview by Nic Suzor: Intermediary Responsibility

The story of copyright is a neat illustration of a messy problem common to all attempts to impose restrictions on the flow of information over a decentralised, transnational network of 3+ billion people. Across the breadth of regulatory debates, there is a common set of difficult regulatory trade-offs. There are fundamental conflicts between the efficiency of enforcement mechanisms, the liberty of private actors, the need for certainty in order to encourage investment and innovation, and the rights of individuals.

On the efficiency side, intermediaries are the ‘cheapest cost avoiders’.⁸ Generally speaking, primary defendants are hard to reach – they are too numerous to be worth suing individually, or too poor, or unidentifiable behind layers of anonymity, or simply outside of the jurisdiction. For all of these reasons, intermediaries make attractive targets for liability; they are the focal points of the internet, with real power to influence how people communicate and access information). From the perspective of law enforcement, intermediary liability is not so much about fault as about efficiency and control.

For the telecommunications industry, intermediary liability is about certainty. Online intermediaries are hesitant to take on the responsibility to police the behaviour of users, and reluctant to bear the cost of doing so. Their arguments rest heavily on the need to encourage investment in innovative new technologies, technologies that disrupt or at least unsettle the continued operation of other industries.

As for the ‘public interest’, the issues are extremely complex. The basic principles of the rule of law require that our laws are enforced in a manner that is regular, transparent, equally and proportionately applied, and fair. In order to ensure that justice is carried out with due process, our constitutional system requires that the law is enforced by an independent judiciary. But delegating some responsibility for upholding the law and social standards to online intermediaries seems to be the only reasonable prospect we have for enforcing them. This can be problematic, since intermediaries may well be unable to effectively make complex judgment calls about the lawfulness of their users’ conduct. For citizens, there is a difficult procedural trade-off between the efficacy of the legal system and the safeguards it provides. These tensions are currently playing out across a range of different legal issues that we will consider below.

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