unraveling intermediary liability

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  • 1. Unraveling Intermediary Liability Emily Laidlaw Lecturer UEA Law School
  • 2. 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.
  • 3. 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
  • 4. Two Questions and Challenges Questions How should intermediaries be regulated? What do we expect of intermediaries? Challenge To the legal regime. State capitalising on intermediarys 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?
  • 5. 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
  • 6. 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.
  • 7. 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, LOreal v eBay Case C-324/09 (2011) What is an intermediary under the ECD?
  • 8. 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].
  • 9. 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).
  • 10. 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 shouldnt be making the assessment of legality of content.
  • 11. 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.
  • 12. 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).
  • 13. 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.
  • 14. 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)
  • 15. 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.
  • 16. Third Wave: the Collapse 2. Cases so fact sensitive that it is hard to draw a line of authority from them to advise busine

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