Abstract: This Chapter analyzes the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity.
The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny.
The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of the landscape in this area, especially but not exclusively in the EU. Service providers in several fields, most notably intellectual property law, are being required actively to assist in preventing wrongdoing by third parties regardless of their own fault (but for example, engaging in so-called “web-blocking” of allegedly infringing sites). These mechanisms, found in several legislative instruments but developed in greater detail by courts through applications in private litigation, operate to create a quasi-regulatory network of obligations without imposition of full monetary liability.
The Chapter concludes by considering briefly whether generally applicable principles can be derived from, and extended beyond, the specific context in which they first arose. This analysis leads to two central propositions, which it is argued hold true descriptively and warrant endorsement prescriptively. First, an assessment of secondary liability cannot be divorced from (and indeed must be informed by) the scope of primary liability or other legal devices by which the conduct of service providers or their customers is regulated. And, second, despite the claims that secondary liability is simply the application of general principles of tort law, secondary liability is rarely a subject-neutral allocation of responsibility among different potential defendants according to autonomous principles of fault; rather, it maps in part to the policy objectives of the different bodies of law where the claim of (secondary) liability arises.
Citation: Dinwoodie, Graeme B., A Comparative Analysis of the Secondary Liability of Online Service Providers (May 17, 2017). Secondary Liability of Internet Service Providers (Graeme Dinwoodie ed., Springer 2017).
Full chapter on SSRN: https://ssrn.com/abstract=2997891