Intermediary Design Duties

67 Pages Posted: 6 Jul 2017 Last revised: 8 Jul 2017

Olivier Sylvain

Fordham University School of Law

Date Written: July 4, 2017

Abstract

Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the “passive conduits” through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users’ illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users’ content and behavior, courts today refrain from granting immunity only in cases in which intermediaries “materially contribute” to illegal online conduct. This has proven to be a very high juridical bar for plaintiffs to clear and a very generous protection for defendant providers.

This doctrine rests on an outdated view of how most online intermediaries do business. Today, the most successful online companies do not passively relay messages, unconcerned about what users say or do. They use the data to engineer online experiences in ways that are unrelated to the charming interest in connecting end users. Some of the most successful companies collect, analyze, and sort user content for publication in ancillary and secondary markets. This is how the CDA immunity doctrine, first developed by the courts two decades ago, is ill-suited to the world today. Online intermediaries are now assertively exploiting user content in ways that the doctrine does not fully acknowledge, leaving public law priorities and consumer protections underenforced. Historically subordinated groups have the most to lose under this approach.

This Article proposes a reform that is adapted to online intermediaries’ outsized influence today. It proposes that, in each case in which defendant providers invoke the immunity, courts scrutinize the manner in which the provider elicits user content, as well as the extent to which those providers exploit the information in secondary or ancillary markets. Following this more searching approach, courts will return the doctrine to its roots in the language and purpose of the CDA: to shield providers from liability for third-party user online conduct only to the extent such providers operate as true passive conduits.

Keywords: cda, communications decency act, online intermediaries, intermediary immunity, discrimination, passive conduit, material contribution, roommates.com

Suggested Citation

Sylvain, Olivier, Intermediary Design Duties (July 4, 2017). 50 Connecticut Law Review __ (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2997141

Olivier Sylvain (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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