Standards for Duty of Care? Debating Intermediary Liability from a Sectoral Perspective

Author:Carsten Ullrich

The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the E-Commerce Directive (ECD). Already in those days, during the run-up to the ECD, there was an intense debate regarding whether a light-touch approach or more stringent content liability regime for intermediaries would be the appropriate way forward. 20 years later the debate is essentially led from the same angle, but has... (see full summary)

Standards for Duty of Care?
Standards for Duty of Care?
Debating Intermediary Liability from a Sectoral Perspective
by Carsten Ullrich*
© 2017 Carsten Ullrich
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
Recommended citation: Ca rsten Ullrich, Standards for D uty of Care? Debating Intermed iary Liability from a S ectoral
Perspective, 8 (2 017) JIPITEC 111 para 1.
Keywords: Intermediary liability; regulation; sectoral approach; self-regulation; reasonable duties of care
a sectoral, problem-driven approach to regulation”.
This paper will map out and critically evaluate some
current sectoral (read vertical) regulatory develop-
ments, which may affect intermediary liability. It will
look at recent, more top-down approaches proposed
by the EU (e.g. in copyright), as well as self-regula-
tory efforts. This will be compared to less publicized
developments, which have notably taken place in
the area of product and financial regulation affecting
ecommerce, such as for example efforts to combat
the sale of fake medicines, unsafe products online, or
anti-money laundering compliance. In these areas, it
is argued that regulatory authorities have more pro-
actively engaged online platforms, both on a legisla-
tive and practical level. A special focus in this context
will be on the role of reasonable duties of care which
intermediaries may be required to apply in order to
detect and prevent infringements. Could these more
“grassroots” developments and the convergence of
online and offline worlds provide blueprints to en-
courage the development of a new content liability
framework based on sectoral duties of care?
Abstract: The EU’s current regulatory frame-
work for the content liability of online intermediar-
ies was created in 2000 with the E-Commerce Direc-
tive (ECD). Already in those days, during the run-up
to the ECD, there was an intense debate regarding
whether a light-touch approach or more stringent
content liability regime for intermediaries would be
the appropriate way forward. 20 years later the de-
bate is essentially led from the same angle, but has
predictably, increased in complexity as the internet
makes massive strides in transforming the “offline”
world. There are those who argue that a purely hori-
zontal approach in regulating internet intermediaries,
or online platforms, remains sufficient. Others think
the time has come to reflect the disruptive entrances
online platforms made in various sectors of society
in more vertical changes affecting substantive law.
The EU Commission sits on the fence it seems, how-
ever. In its communication on online platforms and
the digital single market, the Commission announced
last year that it would leave the current intermediary
liability regime as it is for now “while implementing
A. Introduction
The debate over internet regulation began
since the internet started to make an increasing
impact on culture and the economy. As a purely
illustrative example, a contribution from 1995 by
Euan Cameron & Caitriona Hegarty1 argued that
* LLM (Edinburgh), PhD candidate in Law under the
supervision of Prof. Mark Cole at the Doctoral Training
Unit on Enforcement in Multi-Level Regulatory Systems
(DTU REMS), Faculty of Law, Economics and Finance (FDEF),
University of Luxembourg.
existing substantive law was apt to deal with the
transformations introduced by the internet and that
the main challenge would be one of enforcement.
For copyright - which is one of the more prominent
examples discussed - the paper submits that
rights owners who take advantage of the new
infrastructures should be left with the task of looking
1 Caitriona Hegarty and Euan Cameron, ‘Case for Minimal
Regulation of Electronic Network Communications’
accessed 3 January 2017.
Carsten Ullrich
after enforcement challenges posed by new means
of exploitation. The traditional distinction between
service provider and facility user may be blurred
by the internet - a smart prevision of the debate
over the “neutral” and “passive” character of an
information service provider, culminating in L’Oréal
v eBay2 15 years later. Finally, regulation, according
to the paper, should be kept to a minimum to allow
the internet to ourish. Self-regulation would be the
most suitable means to facilitate experimentation
and new possibilities of global connectivity and
2 One could argue that this view was borne out in the
EU E-Commerce Directive in 2000,3 which established
general and horizontally available conditions under
which an information service provider (ISP) could be
held liable for content posted on its network.
Substantive law on copyright was indeed adapted to
electronic communications developments in 1996,
one year after the appearance of the above article,
when the 1996 WIPO Internet Treaties4 introduced
the public communication and distribution rights.
These were then introduced into EU law by the
InfoSoc Directive5 in 2001.
4 However, even those early days were not free from
considerations of a more hands-on regulatory
approach towards the information transmitted and
hosted by online intermediaries. The reasons for this
were principally based on a logic, which looked to
retrospective responsibility in the absence of other
suitable actors.6 It was based on the central role
online intermediaries played as gatekeepers and
infrastructure providers for various forms of content.
The internet posed an entirely new regulatory
challenge because it made matters of jurisdiction,
detection and enforcement more complex. With
the prospect of individuals’ prosecution being of
small effect and perpetrators difcult to get hold
2 L’Oréal (UK) Ltd v eBay International AG, eBay Europe SARL, eBay
(UK) Ltd and others, C-324/09 [2011] ECLI:EU:C:2011:474 (CJEU).
3 Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the
Internal Market, OJ L 187 2000.
4 WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT) (1996), in particular Art. 8 WCT.
5 Directive 2001/29/EC, OJ L 167, 22/06/2001 (InfoSoc
Directive), Art 3; This gives authors or right holders the
exclusive right to communication of their works to the
public including making it available “in such a way that
members of the public may access them from a place and at
a time individually chosen by them.”
6 Anton Vedder, ‘Accountability of Internet Access and
Service Providers – Strict Liability Entering Ethics?’ (2001)
3 Ethics and Information Technology 67, 69–70.
of, intermediaries were the only “tangible” actors
relatively easy to locate. On the other hand, those
voices arguing for a lighter approach towards
internet and intermediary regulation were also
using economic and moral arguments and technical
challenges of policing the internet as justication for
a light-touch approach.7
Over 20 years later the debate is essentially led from
the same angle, but has predictably, increased in
complexity as the internet makes massive strides
in transforming the ofine world and does indeed
challenge some substantive legal concepts (e.g.
copyright). There is still the view which cautions
against moving away from the current horizontal
approach in regulating intermediaries or online
platforms, pointing towards largely consistent
judgements by the CJEU as proof for the adequacy
of the current regime.8 However, voices calling
for a more robust regulatory approach - including
mandating of a more proactive role of intermediaries
or online platforms - in combating infringing content
have become more frequent.9 The assumptions,
which underpinned the original liability regime,
have changed. First, the industry itself has come
of age and is economically more viable. Secondly,
intermediaries now engage in activities beyond pure
data hosting. They directly benet from hosting by
gaining revenue through advertising add-on services
such as display optimization or using trafc data.
This puts a new perspective on the technical and
automatic character of their activities. Finally,
ltering technology has advanced in a way that
makes effective monitoring for infringing content
more feasible.10 These considerations can also be
7 Graham Pearce and Nicholas Platten, ‘Promoting the
Information Society: The EU Directive on Electronic
Commerce’ (2000) 6 European Law Journal 363, pp. 370-376,
Lilian Edwards, ‘The Fall and Rise Of Intermediary Liability
Online’, Law and the Internet (3rd ed, Hart Pub 2009) 84–87.
8 See for example Eleonora Rosati, Why a Reform of Hosting
Providers’ Safe Harbour Is Unnecessary under EU Copyright
Law (Zenodo 2016)., and Giancarlo Frosio F, ‘Reforming
Intermediary Liability in the Platform Economy: A European
Digital Single Market Strategy’ [2017] Northwestern
University Law Review Online.
9 See the more holistic argumentations of Frank Pasquale,
‘Platform Neutrality: Enhancing Freedom of Expression in
Spheres of Private Power’ (2016) 17 Theoretical Inquiries
in Law 487., Robin Mansell, ‘The Public’s Interest in
Intermediaries’ (2015) 17 info 8., and specically related
to infringing content Peggy Valcke, Aleksandra Kuczerawy
and Pieter-Jan Ombelet, ‘Did the Romans Get It Right?
What Del, Google, EBay, and UPC TeleKabel Wien Have
in Common’ <
cfm?abstract_id=2839213> accessed 2 March 2017. Or
Mariarosaria Taddeo and Luciano Floridi, ‘The Debate on
the Moral Responsibilities of Online Service Providers’
(2016) 22 Science and Engineering Ethics 1575.
10 D Friedmann, ‘Sinking the Safe Harbour with the Legal
Certainty of Strict Liability in Sight’ (2014) 9 Journal of

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