Unraveling intermediary liability

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Unraveling Intermediary Liability Emily Laidlaw Lecturer UEA Law School

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Transcript of Unraveling intermediary liability

Page 1: Unraveling intermediary liability

Unraveling Intermediary

LiabilityEmily Laidlaw

LecturerUEA Law School

Page 2: Unraveling intermediary liability

Overview of Evolution of Intermediary Liability

• Current law suffering an identity crisis:• Law conflicting, unclear• Minimal practical guidance.

Three Waves in Intermediary Liability

• First Wave: 1990s-2005 - finding our liability feet

• Second Wave: 2005-2011 - striving for nuance

• Third Wave: 2011-present – the collapse

• Next Wave? Back to basics.

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Who are they and what do they do?

Who are they?

• ISPs (access)

• Search engines (navigation)

• Hosts of UGC (SNPs)

• Hosts of other content, with or without UGC (blogs, newspapers), or services (domain names), or storage (cloud)

• Ecommerce platforms

• Payment systems.

What do they do?

• As gatekeepers, they can control information as it moves through a gate:• Manipulate

• Channel;

• Delete;

• Store;

• Reveal.

• Facilitate

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Two Questions and Challenges

Questions How should

intermediaries be regulated?

What do we expect of intermediaries?

Challenge• To the legal regime. State

capitalising on intermediary’s capacity to regulate the conduct of third parties.

• Do we expect intermediaries to advocate on behalf of consumers? What freedom do they have to set their own rules of conduct?

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First Wave : 1990s-2005

• CDA v E-Commerce Directive

• Communications Decency Act 47 USC (1996), s. 230: blanket immunity.

• Led to cases like • Zeran v AOL (1997) 4th Circ. (CA).• Blumenthal v. Drudge (1997): immunity even

where the provider has an active, even aggressive role in making the content available to others

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First Wave

• E-Commerce Directive 2000/31/EC notice and take down regime. Limitation of liability for:• mere conduits (generally no liability);• caching (no liability without actual knowledge

and if act expeditiously);• Hosts: only escape liability if they did not

know, nor was it apparent, that the information was unlawful, or if they obtained such knowledge, provided they act expeditiously to remove or disable access to the content.

• Early debates about blanket immunity versus notice and take down.

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Second Wave: 2005-2011 The search for nuance

• Two different levels: national/EU (driven by case law) and EU/international (rights-based discussions)

• Series of UK cases grappling with nuance.

• How involved in moderation do you have to be to lose your exemption from liability? Kaschke v. Gray and Hilton (2009) QB:

• What qualifies as ‘notice’? Tamiz v Google [2013] CA, Davison v Habeeb [2011 QB, L’Oreal v eBay Case C-324/09 (2011)

• What is an intermediary under the ECD?

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Second Wave

• Conflicting results within the EU - Search Engines:

• Some European countries have specifically provided that search engines are an ISS.

• Metropolitan International Schools Ltd. v. Designtechnica Corp.(2009) Eady commented in obiter that Google did not qualify as a mere conduit, cache or host of content under the Regulations.

• Google France, Google Inc. v. Louis Vuitton Malletier, C-236/08 (ECJ) (three conjoined cases C-236/08, C-237/08, and C-238/08): ECJ held that Google is an ISS to whom the limitation of liability provisions apply. [note held here that sale of trademarked Adwords was not this and thus not an ISS under article 14 in that case].

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Second Wave• International context: states taking a hard line:

• Italy - three Google executives convicted for violating the Italian data protection code for posting on YouTube (overturned 2013).

• Turkey:

• Law 5651– obligation to block access to content that i.e. insults Ataturk.

• 2014 – law empowering telecommunications regulator to block access to websites without court order. Blocked YouTube, Twitter.

• Russia has blocked access to news sites for ‘calling for participation in authorized rallies’.

• Saudi Arabia now requires a license to post content to YouTube.

• Struggle for nuance is accompanied with struggle for Internet freedom and international standards (and conflicts).

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Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 2011 Report to the UN

• The emergence of rights-based analysis about the role of intermediaries.

• “The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf”. (para 43)

• Of concern (para 42).

• subject to abuse by state and private entities.

• Risk of liability causes intermediary to err on side of taking content down.

• Lack of transparency on decision making practices obscures discriminatory practices or political pressure affecting their decisions.

• Companies shouldn’t be making the assessment of legality of content.

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Second Wave

• Scarlet v SABAM 2011(CJEU) (followed by Sabam v Netlog 2012 Case C-360/10).

• Held that an ISP cannot be ordered to install a filtering system of all electronic communications and blocking certain content.

• Basis of decision: Charter of Fundamental Rights and Freedoms

• Compare with 2010 European Commission report (on the IPR Enforcement Directive):

“[G]iven intermediaries' favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.”

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Third Wave: The Collapse

The search for nuance has had three effects:

1. Fragmented intermediary liability into subject-specific pockets of analysis.

• Copyright:• Immunity for conduits such as ISPs, art. 12 ECD met with s.

97A CDPA allowing injunctions against ISPs:• 20th Century Fox v BT (No1) [2011] EWHC 1981 (Ch)• Dramatico v BSkyB and others [2012] 268 (Ch)• Similar restrictions now in Ireland, the Netherlands, Italy,

Denmark and Belgium

• USA: DMCA:• Garcia v Google: Innocence of Muslims video – 9th circuit CA

ordered Google to take down video (performers rights of actor based on 5 seconds of a 13 minute video).

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Third Wave: The Collapse

• Defamation:

A Combination of the following: Section 1 Defamation Act 1996; New Sections 5 and 10 Defamation Act 2013; Draft Regulations for Operators of Websites

• DA 2013: s. 5 - It is a defence for the operator to show that it was not the operator who posted the statement on the website. Defeated if the claimant shows that —

a) the person who posted the statement is anonymous;

b) the claimant gave the operator a notice of complaint in relation to the statement, and

c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

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Third Wave: the Collapse

• Revenge Porn/Cyber-bullying

• Space to watch. Not about formalised liability frameworks but about political and other pressure.

• USA: s. 230 preempts state law BUT:• rogue decisions like: Toups v. Godaddy.com, No. D-

130,018-C, slip op. at 1, (D. Tex. Apr. 17, 2013) – denied motion to dismiss based on s. 230 (case against revenge porn host for explicit pictures of identifiable women shown without their permission).

• Washington state Bill 6251 (liability for sites that host explicit content or content with minors) enjoined from enforcement: Backpage.com v. McKenna, No. C12-954 RSM, 2012 WL 4120262, at *2 (W.D. Wash. Sept. 18, 2012)

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Third Wave: the Collapse

• What about rash of cyber-bullying bills across US and Canada? • Canada has no equivalent to CDA or ECD.• New notice-and-notice provisions for

copyright.• Through the back door? Bill C-13.• Allow ISPs to voluntarily give customer

information to police without civil or criminal liability

• C-13 gives police greater access to metadata.

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Third Wave: the Collapse

2. Cases so fact sensitive that it is hard to draw a line of authority from them to advise businesses.

- Not new to law –Tort law - standard of care, nuisance.

• Is intermediary liability moving in this direction of fact-sensitivity where the law is simply a guide to the risk of liability?

• Problematic where engage fundamental rights and private companies are both targets and adjudicators.

• More than being fact sensitive, we have decisions coming out the courts that are bewildering: • Delfi AS v Estonia [2013] ECtHR

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Delfi AS v Estonia (2013)(Application no. 64569/09)

• Facts: Defli published article on controversial decision of ferry company SLK to change its routes. 185 comments, 20 insulting/threatening of SLK majority shareholder (‘L’). Comments up for 6 weeks. L demands that Delfi remove the comments and pay damages of 500k kroons. Comments removed on the same day as the complaint, refused to pay damages.

• Reasoning:

• Delfi should have exercised caution because there was a greater risk of comments that were insulting or hate speech.

• On anonymity: By allowing comments to be made by non-registered users, Delfi had assumed a certain responsibility for them.

• Notice and Takedown: filter for vulgar words deemed insufficient and Delfi ‘was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public.’

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Delfi AS v Estonia

• No consideration of ECD, international standards (La Rue), work of European Commission.

• Risky precedent: forces pre-approval of comments or blocking of content the least bit controversial.

• ECtHR has referred case to the Grande Chamber at the request of Delfi.

• Problem: trying to regulate the slippery slope. Who is responsible for the slippery slope of a message board?

• Godwin’s law: As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.

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Opt-In Agreement for Pornography

3. Agreements outside formal legal frameworks capitalising on their intermediary role. Sleep-walking into censorship state?

• Opt-in agreement between UK government and major ISPs.• access to content that is pornographic is blocked unless a

broadband user “opts in” with its provider to access such sites;• The Government has also stated its intentions to extend the

opt-in filter to extremist sites.• Companies such as BT have implemented such filters under

the framework of parental controls, where new users now must opt-in to a variety of content, ranging from obscene content, to content featuring nudity, drugs and alcohol, self harm and dating sites.

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Fourth Wave: Back to Basics?

European Commission COM(2011) 942

• Four types of uncertainty highlighted in European Commission Communication COM(2011) 942:• Definitions;• Conditions (actual knowledge)• Notice and takedown• Obligations to monitor

• Suggests a horizontal framework for notice and takedown procedures across Europe.• Purpose is to address diverging approaches across

Europe (industry, statutory and case-law).

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Fourth Wave: Back to Basics?

• Key Issues:• Too much regulation from too many directions all with

slight variations on the standard of liability.• A struggle between soft forms of governance (via

agreement, voluntary commitment) and targeted regulation.

• On a more fundamental level, intermediary liability is at once its own subject/legal regime and a subset of various legal subjects:• how do you identify the line when there is such

variation in scenarios, offenses, communication mediums, technology.

• The pursuit of uniformity, transparency.

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Fourth Wave: Back to Basics?

• Specific issues for notice and takedown regimes:

• What does notice mean?

• Knowledge?

• Moderation?

• Host?

• Notion of intermediary as neutral party: What does neutrality mean (is automation neutral?)- and how does that impact how one frames their liability/obligations.

• Where we are going? Movement away from CDA and ECD to more nuanced forms of governance:

• Notice and notice: general immunity for hosts where have not modified content, pass on complaints to alleged wrongdoer, remove content only at request of court or wrongdoer.

• Defamation Act website operators defence (flawed but evolving).

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Fourth Wave: Back to Basics?

• Back to Basics?• Look at how the slippery slope and community notions of

responsibility have been explored elsewhere. • Slippery slope examined by i.e. Eugen Volokh

• Human rights perspective: • HR allow flexibility in determining obligations that flow

from them. • Draw from normative and moral underpinnings of rights to

address administration of conflict by intermediaries.• Due process:• Private Dispute Resolution for e-commerce disputes to

inform content-based disputes? • Understand intermediary liability as its own subject matter.• International framework? Soft law standards or treaty?

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Emily Laidlaw

LecturerUEA Law School

[email protected]