Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility

26 Oxford International Journal of Law and Information Technology, 1-33 (2018)

Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2017-11

41 Pages Posted: 16 Oct 2017 Last revised: 4 Oct 2018

See all articles by Giancarlo Frosio

Giancarlo Frosio

Université de Strasbourg - CEIPI; Stanford University - Stanford Law School Center for Internet and Society

Multiple version iconThere are 2 versions of this paper

Date Written: October 16, 2017

Abstract

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

Suggested Citation

Frosio, Giancarlo, Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility (October 16, 2017). 26 Oxford International Journal of Law and Information Technology, 1-33 (2018); Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2017-11. Available at SSRN: https://ssrn.com/abstract=3053995 or http://dx.doi.org/10.2139/ssrn.3053995

Giancarlo Frosio (Contact Author)

Université de Strasbourg - CEIPI ( email )

11 Rue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: http://www.ceipi.edu/en/ceipi/the-ceipi-team/giancarlo-frosio/

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://https://cyberlaw.stanford.edu/about/people/giancarlo-frosio

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