On intermediaries, at the Information Law and Policy Centre – 5 October 2017

Cross-posted from https://infolawcentre.blogs.sas.ac.uk/2017/10/10/internet-intermediaries-from-defamation-to-directive-to-data-protection/

Taking stock of recent developments concerning the liability and duties associated with being an Internet intermediary (especially the provision of hosting and social media services) was the theme of a recent event at the Information Law and Policy Centre. In my presentation (click to download slides), starting from about 20 years ago, I reviewed the early statutory interventions, including the broad protection against liability contained in US law (and the narrower shield in respect of intellectual property!), and the conditional provisions adopted by the European Union in Directive 2000/31/EC (E-Commerce Directive), alongside developments in specific areas, such as defamation. The most recent 10 years, though, have seen a trend towards specific solutions for one area of law or another (what I called ‘fragmentation’ in 2013), as well as a growing body of caselaw on liability, injunctions, and the like (both from the Court of Justice of the EU and the domestic courts).

So in 2017, what do we see? I argued that if there ever were a consensus on what intermediaries should or should not be expected to do, it is certainly no longer the case. From the new provisions of the Digital Economy Act 2017 creating a statutory requirement for ISPs to block access to websites not compliant with the new UK rules on age verification for sexually explicit material, to the proposed changes to the Audiovisual Media Services Directive that would create new requirements for video sharing platforms, to the Law Commission’s recommendations on contempt of court and temporary removal of material in order to ensure fair proceedings, new requirements or at least the idea of tweaking the obligations are popping up here and there. This is also seen through the frequent exhortations to service providers, especially social media platforms, to do more about harassment, ‘terrorist’ material, and the like. As the Home Secretary put it in her speech to the Conservative party conference last week, she calls on internet companies ‘to bring forward technology solutions to rid […] platforms of this vile terrorist material that plays such a key role in radicalisation. Act now. Honour your moral obligations.’ Meanwhile, the European Commission’s latest intervention, a Communication on ‘tackling illegal content online’ promotes a ‘more aligned approach [to removing illegal content, which] would make the fight against illegal content more effective’ and ‘reduce the cost of compliance’ – yet at this stage lacks clarity on how to handle divergence in legality between member states, the interaction with liability issues, and human rights issues (including the emerging jurisprudence of the ECtHR on the topic).

The Economist summarised developments in 2017 as being a ‘global techlash’, while Warby J’s perceptive speech on media law pointed to the increased complexity of media law, ‘mainly, though not entirely’ as a result of legislative change. I called for a broader review of intermediary law in the UK (perhaps led by the Law Commissions in Scotland and England and Wales and the appropriate authorities in Northern Ireland), which would take a horizontal approach (i.e. encompassing multiple causes of action), address questions of power (though heeding Orla Lynskey’s caution that power in this context is not soley market power), considers liability, duties, and knock-on effects together (rather than the artificial separation of maintaining immunity while adding new burdens), and responds to Brexit.

Prof. Lorna Woods summarised the growing concerns about blanket models, emphasising a shift towards ‘procedural responsibility’ in systems such as the DEA. She highlighted the uncertainty about the status of the ECD’s no general obligation to monitor clause (article 15), which was never transposed into a specific provision in the UK, and the potential interaction between the proposed AVMSD amendments and UK-specific actions. James Michael framed the issue as influenced by a struggle between legal approaches and the behaviour of technological companies, and wondered whether an international approach (perhaps in the spirit of the OECD’s approach to data protection) would be more fruitful. Further discussion with an engaged audience included the interaction between the status of data controller and the provisions on intermediaries, the role of industry self-regulation, emerging questions of international trade law and harmonisation, and developments elsewhere e.g. injunctions against search engines in Canada.

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