LSE Media Policy Project Blog
8 July 2016
In debates concerning Internet intermediary liability, an often-expressed view is that intermediaries (such as Facebook and Google) shouldn’t be turned into adjudicators, who reason and decide about the legal or illegal nature of content they host, and thus about whether or not to take such content down. But is that a plausible view?
Intermediaries, after all, necessarily must and will make such decisions in one way or another. Once notified of the existence of content that violates people’s privacy, reputation, or children’s rights, can intermediaries avoid weighing those rights against freedom of expression and vice-versa?
Sure, we could compel intermediaries to defer everything to the courts. Yet, courts don’t work in Internet time, geography, or economy. The consequence would be that, with content remaining online, freedom of expression would always win, and other rights lose.
But there is a second reason why we wouldn’t want to defer everything to courts. Isn’t it at the very core of any activity to make decisions that are central to it? And what is more central to being a host than making decisions about … hosting? Remove the reason element from any practice and we are left with a rather impoverished expression of it.
The real problem with Internet intermediaries isn’t having private actors making legal decisions. We all make decisions about right and wrong all the time, and the law is, ultimately, a living expression of the multitude of these decisions. The real problem with Internet intermediaries is rather how, with what diligence, public spirit, and, indeed, responsibility they make the decisions they make.
Yet, a concern with this ‘how’ is nowhere to be found in existing liability regimes. Rather, these regimes rely on arbitrary, outcomes-based approaches that entirely do away with reason. Their focus is placed on the – however wrongful – legally automatic tilting of the takedown scale to favour rights on one side or another, rather than on the reasoning processes through which the scale tilts... Click here to read the full article.