Regulatory Shift in State Intervention: From Intermediary Liability to Responsibility

Abstract

The legal framework regulating online intermediaries has been changing considerably in the past few years. Public enforcement lacking technical knowledge and resources to address an unprecedented challenge in terms of global human semiotic behaviour would coactively outsource online enforcement to private parties. In doing so, intermediary regulation has shifted from intermediary liability to responsibility. The regulatory shift that is presently occurring depends on theoretical, market and technological changes. These emerging innovation policy choices reversed an earlier approach that provided online intermediaries with substantial liability exemptions to incentivize their capacity to develop Internet infrastructure and applications, according to a strict welfare cost/benefit analysis. Today, due to changed market conditions, policy makers might want to switch the enormous transaction costs of online content regulation to online intermediaries as they might be the least cost avoiders, in particular given their economies of scale. This is occurring via state-driven and market-driven private ordering measures, such as private DNS content regulation, website-blocking, graduated response, online search manipulation, monitoring and filtering, payment blockades and follow-the-money strategies, in light of a newly emphasised notion of corporate social responsibility. Meanwhile, online content sanitization is increasingly becoming the sole domain of private—and opaque—algorithmic technologies. As per the effects of this policy development, privately enforced intermediary responsibilities challenge the rule of law and a vast array of fundamental rights, but also run counter any constitutionalization process of online regulation. A centripetal move towards digital constitutionalism—although partially occurring at multiple levels as this book would like to highlight—might be overshadowed for now by the counterpoising centrifugal move caused by private ordering and intermediary responsibility.

Keywords: platforms, online, Internet, regulation, algorithms, content moderation, intellectual property, copyright, speech, enforcement, voluntary measures, private ordering