Intermediary Liability: Time to Reconsider?
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When the Internet was new and the first of what are now known as 'information society services' started appearing, the legal world agreed that these budding businesses should be protected.
Legislators and judges were quick to limit the liability of these intermediaries in the name of market growth. Limiting the liability of these intermediaries, in a sense absolving them of responsibility over their users' actions in most circumstances, was seen as a way to foster innovation.
Arguably this idea underlies the E-Commerce Directive which exempts online intermediaries from several liabilities when certain conditions are met. Broadly, the Directive divides information society services into three categories:
Mere conduit service providers (Art 12): those intermediaries passively involved in the transmission of data e.g. internet providers or phone companies
Caching providers (Art 13): those intermediaries that temporarily and automatically store data in order to make the transmission of data more efficient e.g. proxy server
And the type we’ll focus on:
3. Hosting providers (Art 14), meaning service providers which store data for their users e.g. social media platforms
Because hosting providers are considered to have a more active role their liability is limited on the condition that they do not know that they host illegal activity/information and that they act quickly to remove or disable access to illegal material.
At first all this seems very reasonable and fair. Hosting providers are not really responsible for the activities of their users when the above conditions are met. These companies are innocent bystanders merely facilitating communication and interaction between users. Why should they be liable for activities they do not encourage and have no control over?
But that's not completely accurate. Not when you factor in targeted ads and political bubbles created by algorithms. Hosting providers are not necessarily innocent bystanders that should be left undisturbed.
The European Parliament's report, published in 2020, notes the uncertainty surrounding the definition of 'information society service'. A question raised was whether the liability exemption of the E-Commerce Directive applies to 'activities sponsored by advertisements'. We know that the business model of the biggest social media platforms relies on maximising engagement and targeted advertising. It is crucial to the model that users remain hooked on the content shared on the platform and algorithms are employed to ensure an addictive experience.
This active participation and perpetuation of the cycle of engagement alongside the use of targeted content indicates that hosting intermediaries are not mere bystanders; they are potentially economically complicit to harmful content.
Much of the general discussion has been about how the legal framework should not be too onerous on these intermediaries to safeguard innovations. However, we now should be more concerned about the effect certain types of innovation have on our society and consider that these intermediaries may be more liable for the dissemination of harmful and divisive content than we realise.
Kohl U et al, Information Technology Law 5th ed. (2016), Chapter 3.
Edwards L, 'With great power comes great responsibility? The rise of platform liability' (2018)
