Notice-and-Notice-Plus: A Canadian Perspective Beyond the Liability and Immunity Divide

Abstract

Intermediary liability debates no longer center as rigidly on immunity versus liability. Rather, the shift in focus is to responsibility, a broader notion based on principles of accountability. This shift is partly reflective of the changing role of intermediaries, from conduits to platforms that design and mediate how we interact with the world. The shift is also partly explained, because intermediaries are increasingly scrutinized through the lens of international human rights principles. In this spirit, Hilary Young and I proposed an intermediary liability model we call notice-and-notice-plus (NN+) to the Law Commission of Ontario for its project on reforming defamation law in the digital age available here: https://ssrn.com/abstract=3044772.

This paper explores the viability of deploying NN+ to other kinds of harmful speech. To that end, this paper first sketches NN+ for readers, identifying the legal context for our proposal and sketching its main features. Then, the viability of NN+ is examined through select case studies. By reflecting on a concrete proposal, points of friction in intermediary liability discussions are illuminated. Namely, this paper reflects on the strengths and weaknesses of generalist intermediary regimes, the complexity of regulating online harms and the access to justice problems created, and the dynamics of different kinds of unlawful speech. I conclude that NN+ is mainly a subject specific proposal, but that its underlying logic may be more widely deployed.

This logic, I suggest, is two-fold:

(1) intermediaries should not be liable for the wrongdoing of third parties except in unusual circumstances; and

(2) rules should be codified for how intermediaries manage content based on principles of due process, while leaving undefined how a platform achieves these goals.

Keywords: intermediary liability, harmful speech, defamation, hate speech, terrorism speech, platforms, notice and takedown, social media, freedom of expression