- Elgar European Law series
Chapter 5: Liability of intermediaries
The Internet’s unique layered structure1 creates three separate relevant categories of actors or subjects. The first are those who create or post information. The second are those who this information targets – the recipients. Although the two roles can be blurred in real life (e.g., a home user can post information on a blog and read other users’ blogs), legally the roles are distinct in that legal action would normally target a subject in one of its roles only. The third actor, the intermediaries, plays an essential role which revolves around three points. First, they enable the flow of information between the two other subjects without contributing to the content. Second, they act as guardians of the users’ identity and anonymity. Third, they are in a unique position to prevent or mitigate the damage that may be inflicted by the other two categories’ illegal activity. As such, they may, under certain circumstances, be liable as contributors. Internet service providers are commercial entities guided by commercial logic. Their operation, however, is not solely determined by market forces but is influenced by groups who desire to control the Internet. In the first place, these are the federal and regional governments2 who exercise force on ISPs to control undesirable behaviour on the Internet. The ISP actions, their cooperation or the lack thereof, can influence a whole range of government policies concerning, among other things, defamation, sexually explicit speech or copyright infringement. For corporations, the intermediaries who possess knowledge of possibly illegal downloading patterns are valuable holders of information
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