Intermediary Liability in the Digital Landscape

Introduction

Internet intermediaries include a wide range of entities, including internet service providers, hosts, website operators, app developers, etc. The services and content they provide, distribute, host or store often carry legal liability. Such liability may arise from cases of unauthorised downloading or use of the content or interactive user generated or mediated content sites, such as YouTube or Facebook, etc. Due to the vast range of services with a diverse content and its use, it has been challenging to establish a uniform legal regime that can regulate the content and identify the entity, for example publisher or carrier, for accountability. In this context, Daithi Mac Sithigh in his 2013 article, The fragmentation of intermediary liability in the UK recognises the diverse regime for intermediary liability, particularly mere conduits, hosts and search engines. Sithigth has adopted a horizontal approach to explore this aspect by reviewing the Electronic Commerce Directive (ECD) against the form of liabilities existing in the UK. Sithigth has examined how a mixed model of legal frameworks has emerged to deal with the liability of internet intermediaries.

Horizontal analysis: ECD and the UK law regime with connection to intermediary’s liability

Sithigth has used the horizontal approach of reviewing the intermediary’s liability under the existing regime by referring to the four types of intermediaries to address his research objectives. He referred to mere conduit, cache, hosts, and search engines. What he did was that he adopted a horizontal direction to using commonly used language and common-sense knowledge related to the intermediary’s liability. This approach is contextual in nature. Sithigth seems to have based its approach on the rationale that the legal frameworks for internet intermediaries are developed using horizontal regulation dealing with liability across all content and vertical regulation focused on special domains such as copyright, personal data, domain names, etc.

1. Jaani Riordan, The Liability of Internet Intermediaries (Oxford University Press 2016), 1.
2. Lilian Edwards ‘Role And Responsibility Of Internet Intermediaries In The Field Of Copyright And Related Rights’ WIPO (2011) accessed 15 November 2021 .
3. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531.
4. Ibid.
5. Dennis Beach, ‘Education science in Sweden: Promoting research for teacher education or weakening its scientific foundations?’ (2011) 2(2) Education Inquiry 207-220.

Sithigth’s approach clearly shows a reliance on the horizontal approach. This approach helped him identify the gap between theories and practice relevant with the topic in question. For instance, when he analysed about the notice-based approach applied to hosts, he cited the 2012 review of the EU Commission of the ECD, which termed articles 12-15 regarding notices as a horizontal initiative to be applied across causes of action and types of services. He identified the gap when he cited the UK regime, for example the special cases under Section 3-4 of the Terrorism Act 2006 and the specific details of such notice. By doing so, he was able to show the benefit of the horizontal approach to demonstrating the effect of the notice-based approach across all content. At the same time, the gap he has identified is also the disadvantage of the horizontal approach as a general approach may not be applicable to special cases. Sithigth observed that the notice-based approach to hosts’ liability may favour the complainant. For example, a complaint regarding an unlawful content against the hosts leaves the hosts with the option of leave up that may cause harm or minor harm and take down. The complainant’s action is favoured in any way.

Sithigth has adopted a qualitative research approach that is mainly based on contextualisation. In such an approach, the contextualization is broad subject to a horizontal approach to compare an element with other elements of the same kinds on the same level of generality. The example of notice-based approach regarding hosts across all contents and how it favours the complainant is appropriate here. The approach would have been a vertical approach with deep contextualisation if the subject in focus was compared with different kinds of elements at different levels of generality. This means that if notice-based approach regarding hosts was analysed regarding other intermediaries, it would have been a vertical approach. What the horizontal approach lacks is the deep analysis in vertical approach touching upon various aspects in details, including the infrastructure of economic, political or creative cultural aspects required in a service or a domain.

1. Lilian Edwards ‘Role And Responsibility Of Internet Intermediaries In The Field Of Copyright And Related Rights’ WIPO (2011) accessed 15 November 2021 .
2. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531.
3. Ibid.
4. W. James Potter, An Analysis of Thinking and Research About Qualitative Methods (Taylor & Francis 2013) 293.

Sithigth has adopted a horizontal approach to conduct a comparison between ECD provisions and the UK regimes in regard to the four intermediaries identified, as mentioned above. Such an approach reflects the manner a particular theory is segmented, and its activities specialised. This also means that this approach is specific and multilayered as well as contradictory. There is a segmented organisation, which enables realisation that are varied subject to the segment and specialised activities. This could be seen with the group of mere conduit, caching and hosting services that could use safe-harbours provisions, which are horizontal conditional liability exemptions from claims for damages. These immunities are treated as holistic tools equally applicable to diverse range of illegal activities. This means that the concerned activities, no matter who the actors are, are treated the same. This approach is demonstrated when Sithigth analysed Article 12 of ECD in specific reference to mere conduits but as being applicable to all kinds of activities. Sithigth elaborated about injunctions, as provided under Article 12(3) of ECD and Article 15 concerning mere conduits. At the same time, he identified the gaps in Article 12 by reviewing the corresponding legal provisions in the UK. He cited Section 97A of the Copyright, Designs & Patents Act 1988 and Section 17 of Digital Economy 2017 to call to attention the expanded function of conduit to include record-keeping and related activities. Given the complexity of the position of the intermediary, the general approach to intermediary liability may be appropriate but cannot be generalised as it may be appropriate in the case of certain legal wrongs, but insufficient in the case of others. For example, Section 97A (blocking specified websites) could go beyond injunction governing copyright cases to include injunctions where it is just and convenient, as provided under Section 37 Senior Courts Act 1981.

1. W. James Potter, An Analysis of Thinking and Research About Qualitative Methods (Taylor & Francis 2013) 293.
2. Ibid.
3. Harry Daniels, Vygotsky and Research (Taylor & Francis2008) 18.
4. Christina Angelopoulos, European Intermediary Liability in Copyright: A Tort-Based Analysis (Wolters Kluwer 2016), section 2.2.
5. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531
6. Ibid

As one can see concerning the existence of the ECD and that of corresponding laws in the UK, there is no single legal framework to deal with a particular issue. In that regard, the aim of the legal regime regarding intermediaries liability is to build a coherent, systematic and explicit regime that has a series of specialisation and criteria to address the non-uniformed and diverse form of legal liability regime. Sithigth’s approach comprises a comparative study between the provisions of ECD and the relevant UK laws. This is a doctrinal research method, also termed as the ‘black-letter’ research methodology. By using this methodology, Sithigth emphasised on the legal provisions of ECD and the UK laws and has conducted an and the analysis and evaluation of these legal provisions. The researcher conducting a doctrinal legal research method first identifies the legal provisions and judgments and then analyses this material. This method involves interpretivism and legal reasoning. It identifies and analyses legal issuesf based on the statutory law and courts’ judgments. Sithigth has used this methodology to consider the relevant legal provisions relating to intermediary liability. Using this comparative method, he has evaluated the legal provisions and judgments concerning the mentioned intermediaries and their applicable provisions.

In that regard, Sithigth studied provisions of ECD and corresponding laws and courts judgements in the UK. For example, he reviewed Article 14 of ECD reiterating the scheme mentioned in it, the ‘notice and takedown’ or ‘notice and action’ provision. He identified the corresponding UK provision stating that the UK law has an additional provision that asks courts to consider factors such as the name and address and the details of the unlawful information or activity in the notice. He also identified a potential significant change in language, regarding the ECD test for immunity, which states, “that a host is safe unless it has ‘actual knowledge of illegal activity or information’ or is ‘aware of facts or circumstances from which the illegal activity or information is apparent” where the language ‘is apparent’ is to be replaced with ‘would have been apparent’. Similar comparative analysis was conducted with the question of Article 14 of ECD in context of privacy. Drawing comparison, Sithigth observed the need to develop common law to that effect as was done with the introduction of Section 1 of the Defamation Act 1996. At the same time, he draws a contradictory view that the proposed recommendation may not be necessary if it holds true that ECD is broader than the Act of 1996.

1. Terry Hutchison, ‘Doctrinal Research: researching the jury’ in Dawn Watkins and Mandy Burton (eds.), Research Methods in Law (Routledge 2017).
2. Ibid
3. Mike McConville and Wing Hong Chui, ‘Introduction and Overview’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007).
4. Ibid
5. Ibid
6. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531.

The horizontal approach, thus, involves a comparative, doctrinal approach that compares two jurisdictions, which are the ECD and the UK law in this case, to identify a gap. This approach involves analysing the context of the question in hand in order to verify that a generalisation of a problem with a standard solution, for example the notice based approach regarding hosts explained earlier, may be the appropriate approach to intermediary liability. Sithigth did so by relating it to the courts’ understanding Article 14 ECD in relation to Tamiz v Google and Davison v Habeeb. He highlighted that the courts considered the distinction made between ‘unlawful’ and ‘prime facie unlawful’.

The approach that Sithigth used made it possible to highlight the possibilities and problems regarding intermediary liability in his research. For each intermediary, he has adopted a critical approach to derive certain recommendations, such as the proposition to develop common law regarding privacy in connection with Article 14 of ECD, to inform development of laws. Sithigth’s approach offers a broader perspective to the question in hand. For example, the analysis of all the relevant laws, including ECD has enabled Sithigh to form the opinion that the legal regime concerning intermediaries comprises a diverse system. For example, he identified that regarding copyright, mere conduits have new duties. However, there are new schemes to reduce liabilities of hosts regarding defamation. The relevant legislation is Section 5 of the Defamation Act 2013, which introduced a new defence for the ‘operator of a website’ of whether or not the claimant can identify the author. The multiplicity of the legal regimes that govern a particular issue shows that it is not adequate for ECD alone to address the issue, but a combination of EU and national laws including common law doctrines.

1. M Collins, The Law of Defamation and the Internet (Oxford University Press, 2010).
2. Tamiz v Google [2012] EWHC 449 (QB) [‘Tamiz (HC)’].
3. Davison v Habeeb [2011] EWHC 3031 (QB)
4. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531.

Sithigh’s approach, being broadly horizontal, has analysed the question of intermediary liability by mapping relevant principles or doctrines that govern such liability. Other literatures regarding liability of intermediaries are found that have adopted a similar approach. For the purpose of reference, Jaani Riordan in his work, The Liability of Internet Intermediaries (2016) has also used a broad horizontal approach covering liability rules and remedies by offering a doctrinal analysis of the relevant laws and its scope and limitation. Riordan and Sithigh’s work have both strongly relied on EU law, which is the ECD, but particularly focussed on the legal regimes of the UK. The advantage of this approach is that the content is not too theoretical. Sithigh has referred to relevant laws and case judgments to identify and analyse appropriate views. This might not have happened if the work had a vertical discourse, which would have presented a challenge of linking the knowledge with specific contexts.

Conclusion

To conclude, the doctrinal horizontal approach has enabled the author to cover a broad range of issues citing the case of mere conduits, hosts and search engines. His work has given a broad comparative analysis with a broad picture of the scope, applicability and exception of the relevant law regimes discussed in this article. Sithigh’s work is a contribution to the existing doctrinal research. The findings of his work assert that the legal regime is diverse with segmented scope of remedies and liabilities. His work has drawn connections between the legal regimes in connection with the issue in hand.

1. Daithi Mac Sithigh, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531.
2. See 1-3 of Jaani Riordan, The Liability of Internet Intermediaries (Oxford University Press 2016).
3. Alan R. Sadovnik, Parlo Singh, and Susan F. Semel, Toolkits, Translation Devices and Conceptual Accounts: Essays on Basil Bernstein's Sociology of Knowledge (Peter Land 2010) 53.

Sithigh’s work and the approach he adopted have, most importantly, highlighted the need of an integrated approach between a horizontal approach and a vertical approach. As explained earlier, this was seen in his analysis of Articles 12 and 15 of ECD in connection with the Copyright, Designs & Patents Act 1988 and the Digital Economy 2017. Thus, the ideal approach would have been a more integrated approach combining to a certain extent the horizontal approach with the vertical approach.

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Bibliography

Books

Angelopoulos C, European Intermediary Liability in Copyright: A Tort-Based Analysis (Wolters Kluwer 2016)

Collins M, The Law of Defamation and the Internet (Oxford University Press, 2010)

Daniels H, Vygotsky and Research (Taylor & Francis 2008)

Hutchison T, ‘Doctrinal Research: researching the jury’ in Dawn Watkins and Mandy Burton (eds.), Research Methods in Law (Routledge 2017)

McConville M and Wing Hong Chui, ‘Introduction and Overview’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007)

Potter WJ, An Analysis of Thinking and Research About Qualitative Methods (Taylor & Francis 2013)

Riordan J, The Liability of Internet Intermediaries (Oxford University Press 2016)

Sadovnik AR, Parlo Singh, and Susan F. Semel, Toolkits, Translation Devices and Conceptual Accounts: Essays on Basil Bernstein's Sociology of Knowledge (Peter Land 2010)

Journals

Beach D, ‘Education science in Sweden: Promoting research for teacher education or weakening its scientific foundations?’ (2011) 2(2) Education Inquiry 207-220

Sithigh DM, ‘The fragmentation of intermediary liability in the UK’ (2013) 8(7) Journal of Intellectual Property Law and Practice 521-531

Websites

Edwards L, ‘Role And Responsibility Of Internet Intermediaries In The Field Of Copyright And Related Rights’ WIPO (2011) accessed 15 November 2021