Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries

Abstract

This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries’ responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries’ decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and play a vital role in the construction of our normative reality. Accordingly, an interpretive commitment must be required toward the integrity of such a reality. Every time intermediaries make a decision, as they always will and should — in all of this hidden jurisprudence — the integrity of our normative order and the values it reflects are at stake. This commitment to integrity must be seen as part of a broader concern with justice (both corrective and normative) in the internal life of the information environment. For the same reason, however, we should expect responsible efforts, not perfection, from intermediaries. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid the same (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding the above enables us to move away from outcomes-based approaches towards a more granular and fair system of intermediary liability.

Keywords: Internet intermediaries, liability, normative responsibility, correlativity, justice, rule of law