Liability of intermediaries

Intermediaries play a huge role in our daily use of the Internet: access to the Internet, browsing, e-commerce, and the publishing of content are all made possible by intermediaries.

Although they are frequently referred to as Internet service providers (ISPs) by national legal systems, online intermediaries comprise a variety of services, including Internet access providers, hosting providers, search engines, e-commerce platforms, and social networking platforms.

Given that ISPs facilitate the flow of third-party information online, they are often concerned in legal disputes involving copyright infringement, the distribution of illegal content online such as children pornographic images, freedom of expression breaches, the right to be delisted from indexes (right to be forgotten), fake news, and defamation. ISPs are the most direct way for governments and courts to enforce laws online. From a legal perspective, ISPs might be liable for third-party illegal content in many contexts. In order to avoid legal responsibility for Internet users' activities, certain ISPs - such as host providers and search engines - have increasingly controlled third-party content over the past twenty years. Moreover, even when ISPs are headquartered in a particular country, they are subject to different liability rules for the same content when their services are available to users in multiple jurisdictions.

Intermediary liability is often discussed at international fora including the World Summit on the Information Society (WSIS) and Internet Governance Forum (IGF). ISPs have been individually and collectively active in WSIS/IGF/Working Group on Internet Governance (WGIG) processes through sector-specific business organisations, such as the Information Technology Association of America (ITAA). Various regional ISP associations have been set up worldwide to enhance the ability of thousands of ISPs to reach governments and to influence public policy agendas with regard to their liability for third-party illegal activities online. The Organisation for Economic Co-operation and Development (OECD) recommends governments to minimise burdens on online intermediaries and to provide legal certainty for them by ensuring clear regulatory rules and fair processes.

The following will briefly introduce the role and responsibility of ISPs regarding copyright infringement, child online protection, spam, content policy, and defamation.

Ms Ana Maria Corrêa

Researcher, PhD Candidate in Law, Université Libre de Bruxelles

Brussels-based Ms Ana Maria Corrêa is working as as a researcher and writing her PhD thesis. Her research examines the challenges of regulating the digital economy and preventing discrimination in the US and European markets. Her project was awarded a four-year grant from the CAPES Foundation (Brazil). A member of the Council for European Studies and the Internet Society, she has led classes in comparative law at the Université Libre de Bruxelles and in global law theories the Goethe Universitat Frankfurt. A lawyer by training, prior to pursuing her PhD, Ana Maria earned a Master’s in Public Law from the Université Aix-Marseille III, France, and studied European Human Rights at the European University Institute, Italy.

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