Urs Gasser and Wolfgang Schulz
Berkman Center Research Publication No. 2015-5
February 2015 | Full Text (SSRN)
A. Summary
A review of online intermediary governance frameworks and issues in Brazil, the European Union, India, South Korea, the United States, Thailand, Turkey, and Vietnam creates a picture full of nuance, whether looking at the genesis of intermediary frameworks, the reasons for intervention, or the specifics of the respective governance models, including strategies, institutions, modalities, and the effects of regulation, among other dimensions. The country case studies both highlight and illustrate the importance of cultural and political context, which is not only reflected in the respective legal norms aimed at regulating intermediaries, but also expressed through different views and perceptions regarding the social function of intermediaries. In some sense, the case studies and the way in which the authors tell the story themselves mirror the same context and diversity. Similarly, the importance of the socioeconomic context has become clearly visible. Many of the features of various intermediary governance models can hardly be understood without considering their economic context, in conjunction with demographic characteristics and shifts.
Despite context-sensitivity, certain categories, clusters, and patterns can be distilled from the various case studies and analyzed. As suggested in this synthesis document, online intermediary frameworks can be grouped and mapped based on a number of core criteria and dimensions. Specifically, and from a conceptual angle, the synthesis shows that there are three basic groups of countries, i.e. countries that lack a specific intermediary governance framework, countries with existing and differentiated specific frameworks, and countries with emerging frameworks. The discussion also reveals patterns with respect to the key drivers and motivations for specific regulations or governance, including “bad headlines”, but also forces to be analyzed through the political economic methods. The analysis of the case studies further suggests that the governance models regulating online intermediaries are typically a case of context regulation, particularly when coming in the form of liability regimes. Against this backdrop, the analysis highlights the key role of incentives among the different actors that shape the intermediary landscape, and the interaction among them, when we seek to understand and evaluate the performance of alternative governance models or approaches.
In addition, the case studies have revealed a series of crosscutting and highly dynamic issue specific challenges, including the problem of definition (what is an online intermediary?), the question of the different types of intermediaries, the design of notice-and-takedown systems, and the cost of compliance and enforcement, among other things. Zooming in on the role of governments, this case study analysis suggests three basic functions that governments can serve, i.e. an enabling, leveling, or constraining. With a view to the basic institutional set-up of the different governance regimes, the surveyed countries either follow a Court-based system or heavily rely on government agencies in the context of the different regulatory strategies and techniques – with lines between the two models often blurring, depending on the issues at stake. The question of incentives also plays a decisive role when it comes to the analysis of compliance and enforcement issues, including the problem of over-compliance in the case of asymmetric regulation.
B. Future Considerations
Both with respect to the conceptual and issue-specific analysis, the mapping exercise summarized in this paper is initially mostly of descriptive value and does not immediately lead to firm normative conclusions or “best practices”. That said, a more robust description of the core elements of online intermediary governance frameworks and the various forces at play can lead not only to a deeper phenomenological understanding, but also highlight some of the key considerations and issues to be taken into account when designing, implementing, or reforming governance models for online intermediaries. Such a descriptive map can and must be enriched over time by a growing body of anecdotal, and in some instances even empirical, evidence regarding the performance of varying governance models and their impact on the digital economy and society at large.[57] In that spirit, the synthesis paper and the underlying case studies seek to contribute to a stronger evidence-base that might inform debates about “best practices” regarding online intermediary governance systems by documenting some of the key feature of such regimes.[58]
With these caveats in mind, we would like to highlight the following points from the case study analysis for consideration and further deliberation in the debates about the present and future governance of online intermediaries:
1. Understand the function and economics of intermediaries. Online intermediaries are a relatively recent phenomenon, and both a driver and mirror of structural changes in the information ecosystem. Functionally, online intermediaries challenge traditional notions of what qualifies as “intermediary”: though online intermediaries are still not the source of content creation, they are increasingly involved in its dissemination, combination, etc. Consequently, much emphasis in legal and policy debates is currently on definitions and categorizations of intermediaries vis-à-vis existing laws and other norms. In addition to these definitional questions, the analysis highlights the importance of a deeper functional understanding of the roles of online intermediaries when seeking adequate regulatory frameworks. The same applies with regard to the economics of intermediaries, given the presence of strong network effects and two sided markets.
2. Emphasize the normative dimension of intermediary regulation. Recently, the interplay between intermediary liability and the digital economy has gained significant attention across jurisdictions. Even architects of systems with rather broad safe harbor regimes seem to be primarily focused on the economic benefit of lean intermediary regulation. While economic arguments are of course important in policy debates, one should equally emphasize the normative dimensions, especially the impact of different governance regimes on Human Rights. That the interest in access to information has no natural “guardian” marks a structural problem in that respect.
3. Analyze and evaluate the full range of regulatory mechanisms. The case studies show that intermediaries are regulated by different mechanisms, directly and indirectly, ex ante and ex post, through “hard” as well as “soft” obligations. Different actors follow different approaches, have different types of resources at their disposal, and show different levels of expertise. In order to analyze, assess, and improve the state of regulation and its effects, it is key to take a holistic view and consider all of these elements as well as their interplay (or lack thereof). A governance perspective is a helpful lens for such an analysis.
4. Consider the full costs of intermediary regulation. Given the complexity of the digital ecosystem, it is tempting for governments to target intermediaries. At the surface, interventions at the gateways of Internet communication seem to reduce the costs of regulation. The case studies suggest, however, that such a “window” comes with the risk of over-regulation, with a negative impact on users’ fundamental rights, as well as on innovation and the digital economy. Research also suggests the importance of taking into account less visible costs of interventions, such as the risk of empowering already powerful intermediaries by forcing them to make content related choices.
5. Strengthen mechanisms of mutual learning. Despite all the nuances, the case studies also reveal commonalities and patterns among different governance regimes. In particular, the study highlights similar challenges among countries with notice-and-takedown systems, with problems like defining the requirements for notices, whether and how to inform the owner of the effected content, regulatory oversight, etc. At least with respect to public policy-makers, the analysis suggests a great potential for transnational learning, complementing the increased sophistication of the operators of intermediaries, who tend to take a global perspective when designing their internal governance regimes.
