The Intermediary Conundrum: Cyber-Regulators, Cyber-Police or Both?

Author:Luca Belli - Cristiana Sappa
Pages:183-198
SUMMARY

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,... (see full summary)

 
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The Intermediary Conundrum
2017
183
3
The Intermediary Conundrum
Cyber-Regulators, Cyber-Police or Both?
by Luca Belli and Cristiana Sappa*
© 2017 Luca Belli and Cristiana Sappa
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.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Luca B elli and Cristiana Sappa, T he Intermediary Conundrum: Cyber-Regulator s, Cyber-Police or
Both?, 8 (2017) JIPITEC 183 para 1.
Keywords: Internet intermediaries; intermediary liability; private ordering; cyber-police; fundamental rights;
Internet-users’ rights
right infringement to privacy, from illegal hate speech
to child pornography. The requests for banning spe-
cific 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 implemen-
tation of such requests may occur by imposing ex
ante filters or blocking techniques, aimed at regulat-
ing the flow of information, or by imposing ex post
removals of data, notably through notice-and-take-
down mechanisms. Crucially, such mechanisms may
be imbalanced, protecting specific interests while si-
multaneously discouraging user expression, partici-
pation 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 In-
ternet intermediaries have undertaken as cyber-reg-
ulators 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.
Abstract: The design of intermediary liability
regimes has crucial impact on Internet users’ capa-
bility to fully enjoy their human rights. When inter-
mediary are held responsible for their users’ activi-
ties, 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 intermediar-
ies in cyber-regulators and cyber-police. As points of
control of networks, platforms and a variety of cyber-
spaces, intermediaries have the possibility to regu-
late effectively the behavior of users through their
terms of service and to enforce such private order-
ing in an autonomous fashion, through a number of
technical measures. In this regard, intermediaries un-
dertake 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 pro-
cessed. Furthermore, intermediaries are regularly
asked by public actors to take active steps in order
to enforce national legislation, spanning from copy-
A. Introduction: Intermediaries’
Private Orderings and Their Impact
1
As the use of the Internet has increased for both
personal communication and business purposes,
attention is increasingly turning to the role that
intermediaries play. In this context, how the
intermediary’s liability is designed has a crucial
impact on Internet users’ capacity to fully enjoy
his or her human rights. Users may include natural
persons, non-commercial users and business users.
Indeed, when intermediaries are held responsible for
their users’ activities, the foreseeable consequence
is an increase on the types and the granularity of
restrictions these private entities will introduce and
2017
Luca Belli and Cristiana Sappa
184
3
implement in an attempt to escape any liability.
2
Intermediaries effectively become central points
of control over a variety of cyberspaces, including
electronic networks, platforms and the network of
connected “things”1. The intermediaries are able to
effectively regulate the behaviour of users through
their Terms of Service (ToS). The intermediaries
enforce their private ordering through several
technical measures. In this regard, intermediaries
undertake the role of private regulators, enjoying
the power of contractually regulating the content
and applications that users access and share. This
extends to the ways in which the user’s personal
data is collected and processed. Furthermore,
intermediaries are regularly asked by public actors
to take active steps to enforce national legislation,
spanning from copyright infringement to data
retention, from hate speech to child pornography.
The requests for banning specic forms of expression
or limiting their circulation, may be in the name
of personality rights, such as the reputation of
individuals or that of companies. It is also about
privacy and personal data protection. More
frequently than not, it is about enforcing Intellectual
Property Rights (IPRs).2
3
The implementation of such requests may occur
by imposing ex ante lters or blocking techniques,3
aimed at regulating the ow of information. It may
also occur by imposing the ex post removals of data.
This notably happens by means of notice-and-take-
down mechanisms.4 Moreover, the contractual
* Luca Belli is Senior Researcher at the Center for Technology
and Society of Fundação Getulio Vargas Law School (Rio de
Janeiro) and Associated Researcher at the Centre de Droit Public
Comparé of Paris 2 University. Cristiana Sappa is Professor of
Business Law at Iéseg School of Management (Lille and Paris).
This work is the outcome of a common effort and reasoning
from the two authors. However, the draft of Section I has
to be attributed to Luca Belli, while Cristiana Sappa drafted
Section II and III.
1 The evolution of the control position of Internet
intermediaries in the context of the Internet of Things cannot
be extensively analysed in this paper and will be the object of
a further publication.
2 In this regard, as an instance, intermediaries like Google
report to be asked to remove well over 100,000 links to
alleged copyright infringing material every hour. See GooGle,
Transparency Report. Requests to remove content due to copyright,
2016, <https://transparencyreport.google.com/copyright/
overview#glance>.
3 For a complete overview of blocking techniques, their
efcency and their collateral effects see Internet SocIety,
Internet Society Perspectives on Internet Content Blocking: An
Overview, March 2017 <https://www.internetsociety.org/
sites/default/les/ContentBlockingOverview_20170326_
FINAL_0.pdf>.
4 For an overview of such mechanisms, see J. M. Urban - J.
KaraGanIS b.l. SchofIeld, Notice and Takedown in Everyday
Practice, UC Berkeley Public Law Research Paper No. 2755628,
2017, <https://ssrn.com/abstract=2755628>.
limitations on the basis of which blocking, ltering
and removals are implemented may be based on
vague and unclear ToS. This makes it particularly
difcult, if not impossible, for a regular user to
understand the limits imposed on his or her freedom
of expression. Therefore, any user may face legal
uncertainty and lack the appropriate remedies to
seek redress in the event of abusive blocking or
removal occurring. In addition, the implementation
of ex ante ltering seems to be inefcient. It imposes
higher costs, while at the same time conicting
with the principle of proportionality.5 In fact, ex
ante limitations to the circulation of information
may be imbalanced, protecting specic interests
while simultaneously discouraging user expression,
participation, and innovation. It may additionally
have the effect of hampering the freedom to conduct
a business,
6
by raising the costs for private economic
initiatives.
4
Intermediaries regulate the services they provide
through standard contracts, commonly referred to
as adhesion contracts or boilerplate contracts. The
main feature of any standard contract utilised by any
intermediary is that the contract is not the product
of a negotiation.
7
On the contrary, the conditions
are pre-determined by and expresses the one-sided
control of a single party. Over the past few years, this
type of contract has become the object of numerous
critique.8 The critique ranges from the unilateral
provisions, the almost entire absence of negotiation
between the parties, and the quasi-inexistence of the
bargaining power of one party that is required to
adhere to the terms. Internet users’ mere adherence
to the ToS imposed by the intermediaries gives rise
to a situation where consumers mechanically ‘assent’
to pre-established contractual regulation. According
to the same ToS, the intermediaries may continue
to modify the ToS unilaterally.
9
Hence, except for
5 See ibid.; EUCJ, 24 November 2011, C-70/10, case Scarlett
Extended, EIPR 2012, p. 429ff., commented by d. Meale, SABAM
v. Scarlet: of Course Blanket Filtering is Unlawful, but This isn’t the
End of the Story.
6 At EU level, article 16 of the EU Charter of Fundamental Rights
explicitly enshrines the freedom to conduct a business. See
<http://www.europarl.europa.eu/charter/pdf/text_en.pdf>.
This provision nds no explicit parallel in international
human rights law although the constitutional elements of
this right can be found in the freedom to enjoy the right to
property and freedom of expression.
7 See the seminal work of o. PraUSnItz. The standardization of
commercial contracts in English and continental law, Sweet &
Maxwell, London, 1937.
8 See most notably: M.J. radIn, Boilerplate: The Fine Print, Vanishing
Rights, and the Rule of Law, Princeton University Press, 2012;
n.S. KIM, Wrap Contracts: Foundations and Ramications, Oxford
University Press, 2013.
9 A recent study conducted by the Center for Technology and
Society at Fundação Getulio Vargas analysed the Terms of
Service of 50 online platforms, establishing that only 30% of
the analysed platforms explicitly commit to notifying users

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