Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility
26 Oxford International Journal of Law and Information Technology, 1-33 (2018)
41 Pages Posted: 16 Oct 2017 Last revised: 4 Oct 2018
Date Written: October 16, 2017
This paper contextualizes the recent developments in intermediary liability theory and policy within a broader move towards private ordering online. In this context, online intermediaries’ governance would move away from a well-established utilitarian approach and toward a moral approach by rejecting negligence-based intermediary liability arrangements. Miscellaneous policy tools—such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies, private DNS content regulation, online search manipulation, or administrative enforcement—might reflect this change in perspective. In particular, policy makers—and interested third-parties such as intellectual property rightholders—try to coerce online intermediaries into implementing these policy strategies through voluntary measures and self-regulation, in addition to validly enacted obligations. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Further, enforcement would be looking once again for an ‘answer to the machine in the machine’. By enlisting online intermediaries as watchdogs, governments would de facto delegate online enforcement to algorithmic tools. Due process and fundamental guarantees get mauled by technological enforcement, curbing fair uses of content online and silencing speech according to the mainstream ethical discourse.
Keywords: Intermediary Liability, Online Platform, Internet, Intellectual Property, Copyright, Defamation, Hate Speech, Private Ordering, ICANN
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