The Cambridge University Centre for Intellectual Property and Information Law is holding its Spring Conference on the subject of “Intermediary Liability and Responsibility” on Saturday 10 March 2017.
The Conference will take place at the Faculty of Law, University of Cambridge, 10 West Road and will be chaired by Mr Justice Arnold.
Details of the Conference Topic
The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space.
In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems.
The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’.
Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017).
This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit.
For further information please email CIPIL Administrator, Mr. James Parish (firstname.lastname@example.org)
Provisional Outline of the Day
9:30-10:00 – Registration and coffee
10:00-11:15 – Session One: Taking stock – Where are we now?
This introductory session will look at where we currently stand with regard to intermediary liability and responsibility in the core substantive areas of the DSM. Speakers will look variously at this issue vis-à-vis copyright and other forms of intellectual property, hate speech, children protection and personal data protection.
Frederik Borgesius (Free University Brussels)
Martin Senftleben (Free University Amsterdam (VU))
Lorna Woods (University of Essex)
11:15-11:30 – Coffee Break
11:30-12:30 – Session Two: Passive, active, publishers, intermediaries?
Internet platforms such as Google and Facebook tend to characterise themselves as covered by intermediary shields, including those set out in the EU’s e-Commerce Directive. On the other hand, the holders of copyright and related rights, as well as spokespersons for the traditional media have increasingly argued that such platforms engage in enough control over content that they should acquire publisher responsibilities. Digital rights groups and internet scholars fall on both sides of the debate. How should this debate be resolved? Is one of these claims clearly false or is there a need for a new synthesis of these different perspectives?
David Erdos (CIPIL, University of Cambridge)
Martin Husovec (Tilburg University)
12:30-13:30 – Lunch
13:30-14:45 – Session Three: Notice-based remedies for illegality
This session will look horizontally ex post notice-based remedies that are and/or should be available in the case of alleged illegality. Many critical questions arise here. Who should be qualified to give notice – a court, an administrative authority, a claimant or anyone, including a third party? To what extent should those subject to such notice be obliged to investigate the validity of the claims? Finally, what should be the reach of any response to a bona fide claim of illegality? Should this be restricted to the takedown of the specific content or should it also extent to the deployment of content recognition technologies for the blocking of the relevant content?
Przemysław Polanski (Kozminski University)
Jaani Riordan (8 New Square)
Hugh Tomlinson (Matrix Chambers)
14:45-15:00 – Coffee Break
15:00-16:00 – Session Four: Proactive obligations for intermediary platforms
Whilst most debate and discussion has focused on the responsibilities of intermediaries after notice, the European Court of Human Rights in Delfi suggested that some platforms might be expected to proactively monitor and remove content that poses a particular threat to the enjoyment of human rights even before receiving such notification. Much less controversially, the European Commission’s proposal on child protection and hate speech has suggested that audiovisual platforms should be expected to adopt more limited ex ante measures, such as the implementation of appropriate terms and conditions, flagging mechanisms and age verification systems. This session will explore the concept of proactive obligations and seek to delineate what role they may legitimately play in this area.
Mark Bunting (Communications Chambers/Oxford Internet Institute)
Daithi Mac Sithigh (Queen’s University Belfast)
16:00-16:15 – Coffee Break
16:15-17:30 – Session Five: Where are we going?
This final session will take a more “blue-sky” approach to this topic, both as a whole and specifically in relation to the UK. If an intermediary liability system were to be devised now from scratch what ought it to look like? Are there alternatives to the focus in Europe on actor liability and responsibility for illegality which should be considered? Moreover, given the likely impending Brexit, should the UK seek a different model of regulation in this area separate from that of the DSM?
Christina Angelopoulos (CIPIL, University of Cambridge)
Matthias Leistner (LMU Munich)
Nicolo Zingales (University of Sussex)