Research project

Investigator:
Teresa Rodríguez de las Heras Ballell

Abstract:

Safe harbor provisions for electronic intermediary service providers represent a key common policy in worldwide internet regulation. Although there are disparities in scope, applicable conditions, and effects, intermediary liability rules have been extensively incorporated into most jurisdictions. Inspired by the U.S. legal precedent (essentially, Section 512 of the Digital Millennium Copyright Act), intermediary liability exemptions have been the backbone of electronic commerce and the information society services legal framework in Europe from the outset. To date, it has been a commonplace assumption that the intermediary (non-)liability paradigm has accelerated the expansion and consolidation of digital activities.

However, after almost two decades of evolution, the digital scene has changed considerably. As a consequence, the intermediary liability paradigm has been shaken and the continuation of intermediary liability in its current form has come into question. Ongoing regulatory proposals (namely, under the EU Digital Single Market Strategy) and the reaction of intermediaries to certain controversial issues (fake news, hate speech, copyright infringement, illegal content) have contributed to the latent conflict that is eroding the stability of the current (non-)liability policy option. Despite this trend, alternative models are not yet well defined. The implications of new models for digital society, the protection of rights, internet neutrality, and the preservation of trust are significant. Therefore, a debate to reach a public consensus, a proper understanding of state-of-the-art technology and its future possibilities, and serious harmonizing attempts are imperative.

The confluence of several trends has precipitated the above-traced debate on the need for a paradigm shift in the intermediary liability system.

First, there is the transformation of the Digital Economy into the Platform Economy. Electronic platforms are the dominant organizational model for economic activities, social networking, and emerging businesses in today’s digital society and have transformed social, political, public, and educational contexts. The emergence and increasing popularity of disruptive models, such as sharing-based economy, crowdfunding, or fintech variants, have not only been made possible but greatly stimulated by platform-based solutions. Whether platform operators act as pure intermediaries protected by liability rules, or, in contrast, they should be requested or encouraged to the adoption of proactive is a dilemma that finds an effective breeding ground in the sharing economy.

Second, States have realized how weak and ineffective their traditional preventive and enforcement legal machinery is in the digital scene. Accordingly, a progressive, timid but revealing, “conveyance” of powers and responsibilities in prevention and civil enforcement from public bodies to platform operators is increasingly visible. Platforms are best situated to detect infringement, promptly prevent damages to rights or interests, and effectively enforce rights with contractual-based mechanisms. The collaboration of platform operators and intermediaries enhances the effectiveness of legal enforcement, but also raises legal concerns. The system could veer from a notice-and-take-down-based model towards a duty-of-care-centred one. In this context, several regulatory proposals in the EU seem to reveal a possible replacement of the sound horizontal liability intermediary regime with a number of vertical sectorial liability regimes introducing filtering obligations, proactive measures, or protective mechanisms for intermediaries and platforms in areas such as copyright infringement, illegal activities, or minors’ protection. Which protocols, good practices, and measures could platforms and intermediaries implement to fulfill their ‘duty of care’ will be a key strategical issue likely to affect the sustainability of the model and the stability of the market.

Third, the recent controversy about “fake news” and the use of social media for spreading hate speech, violence, or extremist ideologies (i.e. white supremacist, neo-Nazis, alt-right groups) has put intermediaries and platforms in a quandary. Some popular platforms have decided to react, even compromising their neutrality, by removing content, closing accounts, or publicly denying service to certain users, and implementing mechanisms to automatically identify false news. The array of proactive policies and strategies implemented by platforms and intermediaries raises difficult challenges: first, how to manage a departure from neutrality; second, how to recalibrate liability rules where intermediaries decide to select, assess, remove, and actively monitor; and third, how to avoid arbitrage and “platform shopping” in a world without a uniform response yet.

The aim of this Project is two-fold. First, it seeks to dive into the global debate about the need for a paradigm shift in the liability policy toward increased involvement of digital intermediaries and platform operators into prevention and civil enforcement and its implications. To that end, the Project will analyse and compare regulatory proposals, dominant trends according to reports, workshops and consultation documents, and practices adopted and measures implemented by most popular intermediaries and platforms in Europe and the US. The resulting comparative analysis leads to the second aim of this Project. In the absence of a common international approach, differing views on reshaping intermediary liability rules and, more importantly, on what form the future model should take could undermine the stability of the system, dilute predictability, and encourage arbitrage and “platform shopping.” Harmonization is, therefore, highly desirable. Then, the Project aims to identify key issues to be dealt with in a harmonized legal framework, compare policy alternatives, and explore the most effective and feasible harmonization-enhancing models.