Mapping Current and Emerging Models of Intermediary Liability

Abstract

This paper maps current and emerging models of intermediary liability to support the Broadcasting and Telecommunications Panel review of Canada’s communications legislation.

This paper serves two functions. First, it examines policy issues that are foundational to intermediary liability, namely, innovation policy, free speech policy, business freedom and their public functions, the power derived from data repositories and artificial intelligence, and regulatory design. That intermediaries implicate such a cross-section of policy issues speaks to their central role in the digital economy. The taxonomy I create in this paper is mindful of these foundational policy issues and is driven by the following assessment. First, intermediaries should be assessed pursuant to their activities, and not simply based on a category of what they are (e.g. search engine or ISP). Second, intermediaries might fit multiple categories and that should inform the regulatory burden. Third, some intermediaries wield tremendous power, and the taxonomy of activities should be categorized related to the source of that power, and that is their control over the flow of information online.

Second, building on this foundation, the paper maps intermediary liability laws. The scope is broad, including Canadian laws in the areas of defamation, privacy (tort), intimate images and cyberbullying (legislation), privacy (data protection), civil law in Québec, broadcasting, radio and telecommunications, copyright, criminal law (terrorism and non-consensual distribution of intimate images (NCDII)), CASL and the United States Mexico Canada Agreement (USMCA or CUSMA). This paper also considers legal frameworks in Europe and the USA, and human-rights driven models.

Keywords: intermediaries, privacy, freedom of expression, defamation, broadcasting, communications, human rights, internet regulation