Duties of Care on the Internet

Abstract

Internet Service Providers currently find themselves in the spotlight, both in a national and international context, with regard to their relationship both with governments and other private parties, on for example questions of (civil) liability. The paper focuses on duties of care as concerns the relationship between government and Internet Service Providers. The situation in four countries – the Netherlands, UK, Germany and France – was researched. The (self-) regulation in respect to five separate themes (internet security and safety, child pornography, copyright, identity fraud and the trade in stolen goods through internet platforms) was identified. In addition to this, a significant number of interviews with stakeholders were conducted. The research presents divergent results, which indicates that the related issues are still in a developing stage. Internet security and safety, more specifically the relationship between the Internet Service Provider and the end-user, has only been dealt with in a preliminary manner. This does not mean that in practice nothing happens, but there is a lack of formal embedding in regulation or self-regulation. In respect to child pornography, an almost identical regime exists in the examined countries. Stakeholders offer far-reaching cooperation in the fight against child pornography. All countries have established a system of hotlines for the notification of child pornography, based on self-regulation or a duty of care defined by legislation. A reappearing subject for debate surrounding the fight against the dissemination of child pornography is the applicability of filtering and blocking measures. Copyright attracts a lot of attention causing more stringent regulation of copyright issues in two of the examined countries, which provides the possibility of cutting or limiting the access of end-users to the internet. There is a lot of negative critique on these more stringent regulations and, through the conducted interviews, stakeholders have raised clear concerns on the effective enforceability of the new rules. When dealing with identity fraud, the measures are focused on its consequences. There is not a lot of support for criminalizing identity fraud as such (in addition to already existing possibilities to counter identity fraud through other public laws). The sale of stolen goods through platform providers (i.e. auction and trading websites) is considered to be the responsibility of these providers. The divergent results, which are proof of an ongoing dynamic in these fields and an ongoing search to find a right balance, imply that it is not possible to present proven best practices. This also implies that on the one hand there is still a lot of insecurity, while on the other a clear challenge is presented for further policy-making. Nevertheless, the collected research results provide very interesting information. Conclusions based on the conducted research include the need for a more value-chain oriented approach, suggestions to modify ‘notice and take down’ procedures, clarification of regulatory concepts and the need for an increased knowledge level.