In this opportunity, I am going to write about content liability in cyberspace. As you might think, this topic raises fundamental questions about responsibility online, particularly about what kind of content could cause a claim and who would be responsible for it.
But first, it is crucial to understand for what content I would be responsible for. One first guess could be pretty much common sense: content that might be a sign of criminal offences or unlawful conducts could definitely cause liability, for example, terrorism, hate or violent speech, illegal filesharing.
After that first mention, one could certainly think about another type of harmful content: defamation. According to Lexico, is
"The action of damaging the good reputation of someone; slander or libel".
This applies to a person or a corporation as well.
Examples of defamation could be significantly found on the internet. However, the big question about defamation online is about who is responsible for it? Since there is no clear filter for what is published, the liability ends with the author of the defamation? If I am a victim of defamatory content posted on Facebook, could I complain against this platform? Nevertheless, how could I make Facebook responsible if they (probably) don't know about this content?
At this point, it is essential to understand what is Facebook. Facebook, and other platforms such as Tumblr, Blogger, etc., are "Information Society Service Providers" (ISSP), and according to Practical Law, this kind of services are
"Any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service".
As they are ISSP, it is applicable for them the Electronic Commerce Directive 2000/31/EC. As stated by article 15 of this Directive,
"Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity".
Returning to the questions in the prior paragraph, this means that the platform in which the defamatory content was published, would not be responsible for not monitor this content.
Still, the platform should consider reacting after being notified of the existence of this kind of content. The case of "Godfrey v Demon Internet Service" (seen in class) teaches us that, as the service provider (Demon) could not be responsible for publishing the defamatory content, it should be responsible for not removing this content after being notified of its existence by the victim.
This is the main reason why all ISSP should have prepared teams for this kind of requirements. However, are these platforms adequately prepared to attend these demands?
