The Intermediary Conundrum: cyber-regulators, cyber-police or both?

Abstract

The design of intermediary liability regimes has crucial impact on Internet users’ capability to fully enjoy their human rights. When intermediary are held responsible for their users’ activities, the foreseeable consequence is an increase on the types and granularity of restrictions that private entities will implement to escape liability. This article argues that, besides jeopardizing users’ rights, this situation can increase costs for both intermediaries and new entrants, while transforming intermediaries in cyber-regulators and cyber-police. As points of control of networks, platforms and a variety of cyberspaces, intermediaries have the possibility to regulate effectively the behavior of users through their terms of service and to enforce such private ordering in an autonomous fashion, through a number of technical measures. In this regard, intermediaries undertake a true role of private regulators, contractually regulating the content and applications that users are allowed to access and share as well as the ways in which their personal data can be collected and processed. Furthermore, intermediaries are regularly asked by public actors to take active steps in order to enforce national legislation, spanning from copyright infringement to privacy, from illegal hate speech to child pornography. The requests for banning specific forms of expression or limiting their circulation may be in the name of the personality rights, such as the reputation of individuals or companies, but also privacy, personal data protection, or, more frequently, Intellectual Property Rights (IPRs). The implementation of such requests may occur by imposing ex ante filters or blocking techniques, aimed at regulating the flow of information, or by imposing ex post removals of data, notably through notice-and-takedown mechanisms. Crucially, such mechanisms may be imbalanced, protecting specific interests while simultaneously discouraging user expression, participation and innovation, and raising costs for private economic initiatives, thus limiting the fundamental freedom of conducting a business. This work adopts a critical approach to analyze the role that many Internet intermediaries have undertaken as cyber-regulators and cyber-police. Subsequently, it discusses the current legal framework on intermediary liability, with particular regard to the case law of the Court of Justice of the European Union.