Intermediaries’ liability for hate speech

Intermediaries’ liability for hate speech

Giovanni Sartor

EUI - European University Institute of FlorenceCIRSFID - Faculty of law, University of Bologna

March 26, 2012

G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 1 / 15

The user-generated internet

Internet users write the web, by inputting materials in various containers:web sites (web pages)blogson-line repositories of texts (scribd), photos (flickr), movies(youTube), music, etc.social networkon line forums, comments to other people’s blogs, etc.


Making the provider liable

Should providers be liable (for torts and/or crimes: copyright, libel,defamation, hate crimes, child pornography, etc.) when:

hosting material such that its posting is illegal (to the detriment ofprivacy, copyright, equality-dignity, etc.)taking down material such that its posting is legal (to the detriment offreedom of speech, political or economic freedoms, etc.)

Problem: should there be immunity when uploading/keeping illegalmaterial; and/or taking down legal material?


The basic legal discipline

Host providers are immune from civil and criminal responsibility for illegaluser-generate content:

in the US according to two instrument:the DMCA (digital millennium copyright act), which provides immunityfrom copyright violationsthe CDA (communications decency act) which provides broaderimmunity from other kinds of illegal content

in Europe according to the E-Commerce Directive, which addresses allkinds of illegal content


Should the provider be responsible? Yes

Since, at least with regard to civil liabilitythe provider is profiting from access to the hosted information(fairness)the provider is identifiable and has the resources for coveringcompensation (compensation, risk sharing)the provider can and should be incentivised to prevent damage byremoving or filtering illegal information (prevention/efficiency)

Current immunities should be eliminated. They are subventions toproviders, which are no longer needed now that (some) providers enjoyhuge economic success


Should the provider be responsible? No

Since,the provider has not created the contentmaking the provider liable will impose costs on the provider and put atrisk the current business model (free access)the provider will likely exceed in censorship: if it were considered to beliable it will remove all content having even a small chance of being asource of liability (freedom of expression)

Immunities should be preserved and strengthened. The provider only has asmall benefit from the presence of particular materials on its platform, amuch larger benefit goes to the uploader and to society: incentive to takedown outweighs incentive to preserve even when social interest requirespreserving.


First model. Notice and take down: DCMA 512

Immunity for hosting- No liability for the provider that complies with noticeand take down. The procedure:

right holder sends notice of infringing material to the ISP’s agentprovider takes down and informs customerif customer sends counter-notice, then provider informs right-holderif right-holder does not bring lawsuit, provider puts back material

Immunity for removing. Provider immune if content:claimed to be infringingappearing to be infringing

Plusses: Passive role for provider, involvement of the uploderMinuses: Noticed provider tend to take down any material, to avoid liability(but uploader has chance to respond).


Second model. Absolute immunity: CDA, section 230

Full immunity for hosting:providers are not responsible for hosting illegal material (exceptcopyright)limited possibility of injunctions against providers

Immunity for removing:immunity for screening objectionable contentimmunity for deleting such content

Are providers allowed to engage in censorship, to maintain civility? Yes if ingood faith.


Third model: immunity when not knowing. EU e-commercedirective

Provider not liable for hosting illegal content if:has no actual knowledge of illegal material (and for damages has noknowledge of facts from which the illegal information is apparent), orupon obtaining such knowledge or awareness, acts expeditiously toremove or to disable access to the information

Member states may not impose general obligations on providersto monitor the informationto actively to seek facts or circumstances indicating illegal activity

No clear indication of immunity for removing content


Problem. What is knowledge of illegality?

Knowledge of the illegality of hosted material x involves 2 aspects:1 factual knowledge: material x is hosted on the provider’s server2 legal knowledge: material x is illegal

Some issuesWhat is knowledge of illegality: true belief (the knower views thecontrary as impossible or absurd)?Should the provider actively engage in getting legal knowledge?What should it do with regard to the vast area of penumbra (orrather, the gradual dimming) between the light of legality and thedarkness of illegality?


Fourth model: The administrative model

A public authority gives presumptive indications on what to take down:law enforcement authority (injunctions)independent authority (Hadopi-FR, Italian AGCOM, for copyright,data protection supervisors, etc.)public administrations

Plusses: filter on unreasonable requestsMinuses: difficulty in challenging the authority’s decision, possibly noinvolvement of uploader


The 2010 draft Council recommendation for Public-PrivatePartnership to Counter the Dissemination of Illegal Content

Combination of models 1, 3 and 4:binding legal request from law enforcement authority → obligation totake downnotification from citizen → obligation to take down if content isclearly illegalnotification from law enforcement authorities or authorised complainthotline → obligation to take down unless content is considered to belegal, in this case notify authority

Issues:no right of the up loaders to counterclaim (they are excluded from theprocess)no clarity on immunity for taking down legal material (providers canfree themselves of any responsibility through contracts with users)incentive to censorship (it is always the safer choice)


Legality-illegality in the recommendation

IPSs should categorise materials they are notified about into there classes:Certainly legal →Obligation to take it down if binding request byauthority, obligation to take down or permissible to take down ifnotified by citizens or authorised complain linesPossibly legal and possibly illegal → Obligation to take it down ifbinding request by authority or authorised complain lines. Permissibleif notified by citizens.Certainly illegal → Obligation to take it down whenever notified

How to check whether content falls within what category?


Conclusions

Providers cannot and should not have the obligation to prevent on-linehate speech (no preventive filter on speech). A good thing, possibly:hate comes to the light, and society can express its judgment on itand take appropriate decisions. Right to respond for victims?Providers may be compelled to take down hate materials, butrespecting the adversarial principle (unless material is anonymous),possibly on the basis of a presumptive authoritative assessment, butjudges should have the last word.Providers should not be obliged to assess the legality of materials, butthey should be permitted to take down in good faith inappropriatematerials, depending on the kind of platform (considering how easilyusers can avoid exposure).Uploaders should be given a role and enabled to express their opinion.


This is the end!

Thanks for your attention!

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Intermediaries’ liability for hate speech

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