Legal Space for Innovative Ordering: On the Need to Update Selection Intermediary Liability in the EU

Abstract

The Web needs ordering to be useful. Hyperlinks and search engines are in the center of the dynamic virtual layer that orders the Web, but many new tools and services have been introduced and are being developed. They provide additional and critical value to the information that is available on the Web and have made the Web the increasingly dynamic and mature environment it is today. These selection intermediaries face one problematic legal uncertainty that has not been fully addressed in the European Union, namely the liability for linking to unlawful third party content, which is a frequent occurrence as a result of their open editorial models. EU law only contains ‘safe harbours’ for the providers of strictly delineated ‘mere conduit’, ‘caching’, and ‘hosting’ services and selection intermediaries generally do not profit from the provided legal certainty. The result is a patchwork of degrees of liability across the EU. This paper will discuss the liability of selection intermediaries from the perspectives of legal certainty, their social utility and the free flow of information. This paper argues that currently EU law takes insufficiently into account the added value selection intermediaries provide to the online environment and their contribution to the free flow of information. The innovation in the field of selection intermediaries has only just begun. Legitimate limitations on the free flow of information notwithstanding, the EU needs clearer policy choices regarding the proper freedom of selection intermediaries to increase innovation, transparency and the social value of the Web.