The Liability Of Online Intermediaries For Wrongdoings By Third Parties

It is intuitive that any activity,which takes place on Internet,can produce certain difficulties for a regulating entity.Users can co-operate from all over the world,in immense numbers,by creating,modifying and disseminating content that is fragmented in packets of data.The Internet runs through the TCP/IP protocol that is by design neutral to the content of such data,nor it requires user identification and location,in order to operate.Since the beginning of its commercial diffusion in the 1990 s,the Internet has experienced an immense growth,producing a important economic and social benefits,paired with the rise of illicit activities.These illicit activities are,in some extent,made possible by the characteristics we highlighted above: anonymity,lack of location,net neutrality.The rise of an Internet based economy favored the growth of a new category of private enterprises,whose services are focused on allowing access to the Internet or to provide Internet based services.The services offered are as diverse as is the range of human activities.They vary from granting connection to the Internet to hosting data,from providing a digital space for commercial and social activities to allowing users to perform payments online,from offering file sharing platforms to providing digital maps of our cities.Therefore,we like to refer to these online service providers as intermediaries.The original structure of the Internet,in its elegant minimalism can prove to be an advantage in a certain sense,as anonymity,lack of location and net neutrality favor a free and borderless environment.At the same time,under a different perspective,these three characteristics can represent an imperfection.Anonymity favors lack of certainty in online transactions,while lack of knowledge over user's location and behavior make the provision of online services less efficient.This is the reason why,in practice,Internet intermediaries gather such information,thus representing an architectural superstructure over the original design of the Internet.Furthermore,unlike users,intermediaries are easy to detect and to subject to law enforcement.Internet intermediaries are therefore the subjects that are best suited to regulate user behavior,and the main regulatory tool is to impose secondary liability for user's behavior.This legal tool is a double-edged sword,as on one hand it allows to limit cybercrime and to offer injured parties an opportunity to obtain a compensation for unjust damages.On the other hand,it incentivizes intermediaries in policing expression and content on their servers.Since intermediaries are economic operators,excessively strict rules on intermediary liability can induce them to avoid legal risk by removing even materials that are not unlawful,thus producing a chilling effect on free speech and more in general on Internet activity.In Chapter I we will offer an in-depth analysis of how Internet intermediaries represent a superstructure on the original tissue of internet communication.Furthermore we will discuss why and how they gather the information that is necessary to regulate the Internet and some of the theories that justify the application of secondary liability regimes towards unlawful conduct perpetrated by users.In Chapter II we will analyze the peculiar evolution of the U.S.discipline on intermediary liability and how the EU has adopted some of the solutions that were successful in the USA.The U.S.legislation is characterized by an extremely active role of jurisprudence.The main norm is Section 230 of the Communication Decency Act,a piece of legislation,which was included in the broader Telecommunications Act of 1996.This law was the first major attempt by any legislator to regulate the Internet and free speech advocates fiercely criticized it,as it imposed monitoring duty on Internet intermediaries,in order to reduce the risk that minors enter in contact with pornographic material.The struggle between regulators and free speech advocates was fought in front of the U.S.Supreme Court in the Reno v.ACLU case,following to which the Supreme Court declared ample portions of the Telecommunications Act to be unconstitutional.Section 230,which provides that network operators are not publishers,was saved.Subsequently,we will analyze the evolution of the U.S.jurisprudence on Section 230 of the CDA,which has amplified the effectiveness of the provision by offering the widest possible interpretation.In the U.S.A.,intermediaries essentially benefit from an immunity clause protecting from all civil liability claims related to user behavior and material.Section 512 of the Digital Millennium Copyright Act represents the main exception to the rule of intermediary immunity.This rule provides that under certain conditions intermediaries can be held liable for copyright infringement by third parties.As we will discuss,the most important mechanism to limit copyright infringement is the takedown on notice system,which allows interested parties to send a notification identifying and locating infringing material and obliges the intermediary to to remove.l.The system aims at favoring cooperation between copyright holders and intermediaries and it has proven successful in limiting copyright infringement,but only in regard to large companies.Individuals are often unable to satisfy the strict requirements imposed by Section 512.Section 512 of the DMCA inspires the E.U.system of intermediary liability,where no immunity clause is provided.However,the EU takedown on notice system is inefficient,as right holders are often required to act through the judiciary system,in order to obtain removal of infringing material.In Chapter III we will discuss the Chinese system of intermediary liability.Not only does the Chinese system not contain any general immunity clause,but the 2017 Law on Cyber Security provides for far-reaching monitoring duties.Further duties of monitoring Internet content are provided by administrative regulations.Therefore,in the Chinese system,intermediaries can rarely invoke lack of red flag knowledge over unlawful user activity,which is the condition set out by Article 36 of the Tort Law for excluding secondary liability.As we will discuss,the Chinese system of intermediary liability allows for an efficient removal of infringing content.However,due to the fact that the Chinese jurisprudence does not take into account the degree of fault of the intermediary in aiding and abetting the illicit conduct,Chinese courts tend to only afford limited sums as compensation for injured party losses.Therefore,in some cases,intermediary liability does not produce the dissuasive effect it could potentially have.In Chapter IV we will discuss how different legislations can coexist in a borderless environment such as the Internet is and how national legislation can produce effects worldwide.