Turkish Law Blog

A Critical Analysis of the Intermediary Liability Regime Imposed by Different Regulations

Ecem Yıldırım Ecem Yıldırım/ Apak Uras Law Firm
26 January, 2020
533

A. An Introduction to the World of Intermediaries and Their Liabilities

An intermediary can be defined broadly as an entity that provides the information flow from one party to another on internet.[1] Since they serve as a bridge for any communication between the parties, the intermediaries are able to reach any data formed by the users as well as personal information regarding them.[2] Hence, intermediaries play a tremendous role in assisting and protecting the free speech rights and personal privacy. However, this role of intermediaries tends to feature some complexities due to the global characteristics of companies.[3] The wider the reach of internet becomes, the more the international regulatory regimes are imposed on the multinational companies. In this regard, some internet companies have tried to solve this issue by applying specific filters or restrictions for every different country and create company terms for data privacy to deal with the government queries. The question here arises regarding the liability of the intermediaries when a user posts, publishes or creates access to a content that violates the laws of that country.[4] If the intermediary is found liable, then the extent of this liability is also another issue that should be taken into consideration.

Since the rapid rise in the internet usage, the internet intermediary liability has been the focus of the legal system.[5] The entities who provide intermediary services have been enlightened of the high liability risk that they bear related to infringing content.  There are several issues emerging from the intermediary liability since the users can perform any sort of activity online.[6]  The issues related to the intermediary liability can be broadly stated as the right of free speech, consumer privacy and protection and intellectual property rights protection. The main question evolving around these issues is “who is responsible for the infringing content; is it the user who published it or is it the intermediary that provides the hosting and creating access to the infringing content?”[7]

B. Different Types of Liabilities and Legislation Conducted to Protect Intermediaries from High Level of Liability

Baistrocchi suggests vertical and horizontal approach as two different approaches to determine the liability of an intermediary.[8] According to him, in a vertical approach which is recognised by the United States, different legislation is conducted to deal with the problems arising from different areas of law whereas the horizontal approach gathers all the provisions under one legislation system that regulates all the possible issues originating from any area of law. The horizontal approach is adapted in the E-Commerce Directive (“Directive”). There are other scholars who define different approaches for the liability regime such as blunt expectation and specified request.[9] Garstka suggests the usage of specified request approach, for the determination of intermediary liability, which requires the intermediaries to implement specific instructions so that the intermediaries will be liable only if they breach these terms and not from the infringement conducted by the users. This approach enables the intermediaries to create their own standards for preventing the infringing content. However, since there are both global and national laws that regulate a liability regime for intermediaries, the application of these terms against the global rules might not be very realistic.

In many parts of the world, governments regulate laws that are specifically addressed to the intermediary liability.[10] In general, when a law is regulated for intermediary liability, three models are considered. MacKinnon defines these types as blanket or strict liability, safe harbour or conditional liability and broad immunity. According to the strict liability, an intermediary is liable for any infringing third party publishing even if it is not informed of the illegal content. Intermediaries can escape the liability if they monitor, apply filters and remove the alleged infringing content. China and Thailand are countries that use strict liability regime. The second type is conditional liability in which the intermediary is not held liable if it fulfils the necessary requirements such as removing the infringing content once a notice is received or warning the publisher of the infringing content after receiving a notice. The general explanation being this way, different countries apply different types of conditional liability depending on their region and intermediary type.[11] In the last model called broad immunity, the intermediary is immune from third party content regardless of the intermediary and content type. However, the act regulating copyright, Digital Millennium Copyright Act and US Federal Criminal Law are exemptions to this broad immunity.[12]

It can be stated that the Stratton[13] decision has had a major effect in shaping the intermediary liability legislation system. The court ruled that Prodigy being an online service, was liable for the posting and considered as a “publisher” of the defamatory material. The court stated that Prodigy used a software program which made it act as an editor and could monitor all the contents that was published.[14] This decision caused great reactions from the intermediaries and lots of complaints have been made regarding the huge liability imposed on intermediaries if they were to monitor any content.[15] The intermediaries claimed to take a position where they would not conduct any monitoring so that the courts would not consider them as publishers to prevent any liabilities.[16] After this reaction, Section 230 of the 1996 US Communications Decency Act (“1996 Act”) came into force which gave full immunity against any liability regarding defamation, privacy invasion and hate speech however obliging the intermediaries to monitor any content for pornography or indecent material. Another form of legislation that deals with the liability of intermediaries for the infringement of intellectual property rights is the Section 512 of the Digital Millennium Copyright Act. The act contains conditional liability regime with a notice and takedown policy as stated in the above paragraph.[17] The act requires the notices to be made in certain formats and include specific content. This enables the intermediary to distinguish which notice to consider and act accordingly.[18]

Just like the system in US, the intermediary liability regime in the European Union is also based on two specific regulations such as the E-Commerce Directive and Information Society Directive.[19]  The Directive applies the safe harbour module for the intermediary liability however it does not prevent the courts ordering injunctions to block contents.[20] Even though the Directive provides safe harbour as the Digital Millennium Copyright Act which contains a notice and take down procedure, it does not provide an explicit notice and takedown system.[21] In fact, it suggests a procedure for the intermediaries to be exempt from the liability. The second regulation is the Information Society Directive which deals with the claims related to copyright issues. Since there is no specific law that regulates the liability of intermediaries in United Kingdom, the provisions of the Directive and some other laws that contain certain provisions are applied in intermediary liability cases. [22]

In general, the regulations were conducted for the intermediaries to pursue their activities freely without the fear of liability risks and create a very protected environment for them. In order to prevent contradictions, the Directive was composed to gather all the e-commerce rules under one roof and to regulate the intermediaries acting within the regulated space.[23] Particularly, the Directive seeks to develop the intermediary services and prevent different outcomes of judgments in terms of intermediary liability. Apart from the legal system, there are other sources of infringement content restriction that the companies benefit from.[24] Companies can create their own terms and conditions regarding the steps to take in case of an infringement. For example, Facebook and YouTube do not permit any content related to pornography whereas Google’s Blogger does not have a restriction unless an advertisement is attached to the content. Another example can be the Google’s Blogger not permitting bloody images such as gunshot wounds. Even though pornography and bloody images are not restricted in the United States where the companies’ headquarters are situated, the companies have chosen to implement some restrictions to be able to serve globally. In this regard, it can be seen that companies may set aside the privileges that their national laws contain in order to serve the greater good. Even though many countries all over the world have created different types of legislation for the intermediary liability, in some cases the provisions were not explicit enough for the courts to render fair verdicts.

C. Problems Caused by the Vague Content of the Regulations Imposed on Intermediaries

According to Freiwald, the starting point of the problems was granting a full immunity to intermediaries with the 1996 Act with regards to defamation liability.[25]  The Congress drafted an act, to resolve the intermediaries’ concern with regards to the high level of liability due to monitoring, which provided some vague rights to intermediaries however it disregarded to impose any liabilities for them. The 1996 Act does not foresee any provision regarding the defamation victims and any way of compensation in their favour. [26] Thus, the courts made a very broad interpretation of the provision to grant full immunity to the intermediaries.[27] The Zeran[28] case can be an example to the court’s broad interpretation in which the court decided that Section 230 of the 1996 Act was applicable and thus American Online was granted a full immunity. However, it is argued that the Fourth Circuit decision in the Zeran case exceeded the scope of the intended protection provided by the 1996 Act.[29]

Apart from the 1996 Act, both the E-Commerce and Information Society Directives have been subject to complaints regarding the vague regulation of safe harbours and defences.[30]  The main reason of the complaints is that the Directive does not regulate any liability regime for intermediaries but provides conditions where the intermediaries can be exempt from liability.[31]. One example can be the loss of protection granted by the Directive to intermediaries when the intermediary has “actual knowledge” of the infringing content, but the meaning of actual knowledge has been disregarded. Additionally, the Directive does not regulate the content of the notice which requires the intermediaries to take down the illegal content and states that the intermediary should act expeditiously. Yet again, the term which equals to expeditiously has not been identified. These uncertain provisions can impose negative impacts on freedom of expression since the intermediaries will without doubt take down any content about which a notice was made. The reason for this is that the intermediaries fear from the high level of liability if they do not take down the content, thus to escape from the liability, the intermediaries will not be conducting any additional investigation regarding the alleged illegal content and actuality of the notice.[32]

The problems caused by the vagueness of liability provisions were not always solved in favour of the intermediaries. The Directive’s article 12.3 states that the liability limitation included in the Directive shall not prevent the court of a Member State to order injunctions to block the access to the infringing content. [33] The unclarity of this provision creates a danger of access blocking in Member States despite the explicit provision of article 12(1). Belgium, United Kingdom and Germany have already applied this provision to order blocking injunctions. In this line, the UK courts prefer to order domain name service blocking instead of internet protocol (IP) address blocking to prevent collateral damage, since it is possible that the infringing website might share its IP address with other legitimate websites.[34] This issue was taken into consideration in the Cartier v BSkyB[35] case in which the court for the first time ruled for a blocking injunction. In this case even though the infringing website shared its IP with other websites, because the other website contained images of child pornography the court decided that there was no collateral damage.[36] This outcome shows the broad interpretation of the blocking injunction which is not the expected application of this provision.[37] On the contrary, there are arguments stating that this broad interpretation is anticipated as a price for the intermediaries to pay for the wide variety of immunities granted by the EU Directives.[38] Another case that interpreted the immunity provisions on behalf of the claimant is the Delfi[39] case in which the court found that Delfi had exercised a clear control over the published contents thus was not exempt from the liability provision.[40] The court’s decisions was criticised to have overstepped the application of the general monitoring prohibition when it obliged the intermediary to conduct a pre-monitoring of published content.[41]

All in all, it can be said that the legislations which regulate the liability of intermediaries were created in the intention of forming a stabilized and well-structured liability regime in particular to protect the intermediaries from the unlimited level of liability. However, the provisions have provided the courts a very broad interpretation system in which both intermediaries and the claimants have faced difficulties. In this line, it is required to make some amendments both to the provisions and the approaches that the courts adopt while rendering a decision.

D. Possible Resolutions to the Broad Interpretation of the Liability Regime

Koelman suggests the creation of a special organ which would receive all the complaints about the unlawful contents travelling through internet.[42] The composition of this special organ should be explicitly and objectively defined so that it could have the ability to judge whether the alleged infringement is accurate and should require a blocking injunction. The notifications submitted to this organ should be in a formal format and contain specific requirements. The legitimacy of this body should be regulated in a statute or companies’ own terms and the decision of this organ should be abided with. Also, the notifications should follow certain formal requirements. The British Internet Watch Foundation (IWF) can be given as an example since it acts as a special organ for the illegal pornographically content. Another sample is found in Argentine where a special body considers the claims regarding copyright infringements.

Apart from private organs, some alterations are also foreseen for the provisions in the regulations. It is obvious that removing content from the website will have negative financial impacts on the intermediaries. Thus, the cost that the intermediaries will bear to remove illegal content should not be too high and it is required to set a standard procedure that the intermediaries should follow when they receive a notice.[43] It is also recommended to insert provisions in the Directive that regulates the notice and take down procedure such as the one regulated in the Digital Millennium Copyright Act. [44] A put back procedure should also be incorporated in the case where a notice for illegal content is found groundless. Because of this possible scenario, some level of liabilities should be imposed upon the individuals who intentionally make inaccurate or baseless notices which result into the removal of the Web page and possible financial loss for the Web page owner.

The last to focus on for solutions is the types of blocking that the courts order in case of an illegal content. Even though the courts in the UK and in other EU countries consider DNS blocking causing less collateral damage than IP blocking, the reality is far from being true.[45] Since these technical issues are not regulated, it is proposed to draft a more detailed provision for blocking injunction which could ease the problems caused by different types of blocking. Since most of the problems are caused by the vagueness of the provisions, the solutions include mostly a more thorough regulation regime. Regulating every step for the procedures in an intermediary liability case would reduce the number of court decisions criticised for broad interpretation.

Conclusion

It has been so far focused on the intermediary liability regime and both the contributions and the negative impacts of the legislations that regulate the level of liability for intermediaries. One point is that the intermediaries, which are limited with technical role, should not be obliged to monitor or investigate any content that they store or provide access to; however another side is that because they have such a high technical role, they are the entities that are perfectly capable of controlling and avoiding any illegal content.[46] Even though there should be a free environment for the intermediaries to operate their services and particularly protect the freedom of speech, it is still necessary to have some rules governing a liability regime which would not impose a negative effect to the free nature of these entities.[47] In this regard, in order for the intermediaries to conduct their services, the liability regime should not be a limiting factor where an intermediary can continue its services without any restraints. Thus, the intention of the European legislation by granting exemption from liability to intermediaries, has been to promote the increasing number and services of intermediaries and create an environment where the freedom of speech is protected.[48]

The question of the duty of the intermediaries arises when they are requested to block access to websites. Is it really the duty of the intermediaries to be involved with removing content and blocking access based on claims for infringement? [49] This duty obligation imposed on intermediaries interfere with the neutrality of freedom of speech and the elements of internet itself.  There have been recently campaigns pressuring to hold Google and YouTube liable for hosting hate speech.[50] In this line, expecting Google to set aside its foundational terms of protecting free speech and controlling every publishing might result these intermediaries to terminate operating in regions where their services are limited with laws that are contrary to the basis of their foundation. According to O’Rorke, even though the cost of this monitoring mechanism would not be a burden on the billion worth intermediaries, applying a different regime than what they have been used to would cause a change in the whole system which they would rather escape from instead of operating to earn more. As a conclusion, it is important to set an exhaustive liability regime in which the intermediaries can still operate in line with its broad understanding of freedom of speech but also would cooperate, in a way that can be expected within the boundary of their duties, and even held liable from any infringing content that they host or provide access.


[1] Rebecca MacKinnon, Elonnai Hickok, Allon Bar, and Hai-in Lim. Fostering Freedom Online: The Role of Internet Intermediaries’, Other Publications from the Center for Global Communication Studies (2015), p 19.

[2] MacKinnon n (1) 23.

[3] MacKinnon n (1) 25.

[4] MacKinnon n (1) 39.

[5] Aleksandra Kuczerawy, ‘Intermediary Liability & Freedom of expression: Recent developments in the EU Notice & Action Initiative’, Computer Law and Security Review (2015), vol. 31/ no 1, p 47.

[6] Pablo Asbo Baistrocchi, 'Liability of Intermediary Service Providers in the EU Directive on Electronic Commerce', Santa Clara Computer & High Technology Law Journal, vol. 19/no. 1, (2002), p 114.

[7] Adebola Adeyemi, ‘Liability and exemptions of internet service providers (ISPS): assessing the EU electronic commerce legal regime’, Computer and Telecommunications Law Review (2018), p 7.

[8] Baistrocchi n (6) 117.

[9] Krzysztof Garstka, ‘Looking above and beyond the blunt expectation: specified request as the recommended approach to intermediary liability in cyberspace’, European Journal of Law and Technology, (2016) vol 7/ no 3, p 1.

[10] MacKinnon n (1) 40.

[11] MacKinnon n (1) 40-41.

[12] MacKinnon n (1) 42.

[13] Stratton Oakmont, Inc. v. Prodigy Services Co.1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).

[14] Susan Freiwald, 'Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation', Harvard Journal of Law & Technology, vol. 14/no. 2, (2001), p 592.

[15] Ibid 595.

[16] Ibid 594.

[17] MacKinnon n (1) 50.

[18] Kamiel J. Koelman and Rosa Julia-Barcelo. 'Intermediary Liability in the E-Commerce Directive: So Far, so Good, but it's Not enough', Computer Law and Security Report, vol. 4 (2000), p 235.

[19] MacKinnon n (1) 51.

[20] Etienne Montero, and Quentin Van Enis, 'Enabling Freedom of Expression in Light of Filtering Measures Imposed on Internet Intermediaries: Squaring the Circle?', Computer Law and Security Review: The International Journal of Technology and Practice, vol. 27/no. 1, (2011), p 27.

[21] Kuczerawy n (5) 48.

[22] MacKinnon n (1) 49.

[23] Adeyemi n (7) 7.

[24] MacKinnon n (1) 54.

[25] Freiwald n (14) 572.

[26] Ibid 633.

[27] Ibid 572

[28] Zeran v. America Online, Inc., 958 F. Supp. 1124, 1133-34 (E.D. Va. 1997).

[29] Steven M. Cordero, Comment: Damnum Absque Injuria: Zeran v. AOL and Cyberspace Defamation Law, (1999); 9 Fordham Intell. Prop. Media & Ent. L.J. p. 778.

[30] MacKinnon n (1) 51.

[31] Baistrocchi n (6) 117.

[32] MacKinnon n (1) 52.

[33] Adeyemi n (7) 8.

[34] Alpana Roy and Althaf Marsoof. 'Blocking Injunctions and Collateral Damage', EIPR: European Intellectual Property Review, vol. 39/no. 2, (2017), p 74.

[35] Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658; [2017] 1 All E.R. 700.

[36] Roy n (34) 75.

[37] Ibid 76.

[38] Alice Blythe, ‘Website blocking orders post-Cartier v B Sky B: an analysis of the legal basis for these injunctions and the potential scope of this remedy against other tortious acts’, European Intellectual Property Review, (2017) vol. 39/ no 12, p 770.

[39] Delfi AS v Estonia [2015] EMLR 26; (2016) 62 EHRR 6; 39 BHRC 151.

[40] Tatiana-Eleni Synodinou, 'Intermediaries' Liability for Online Copyright Infringement in the EU: Evolutions and Confusions', Computer Law & Security Review, (2015), vol. 31/no. 1, p 64.

[41] Ibid 65.

[42] Koelman n (18) 237.

[43] Freiwald n (14) 622

[44] Baistrocchi n (6) 130.

[45] Roy n (34) 77.

[46] Montero n (20) 21.

[47] Robert Spano; Intermediary Liability for Online User Comments under the European Convention on Human Rights, Human Rights Law Review, vol. 17/ no 4, (2017), p 667.

[48] Montero n (20) 22.

[49] Owen O’Rorke, ‘Search engine "pessimisation": an upward trend for rights holders?’ European Intellectual Property Review, (2017) vol. 39/ no 11 p. 670.

[50] Ibid 670.

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