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The Liability of Internet Intermediaries The Liability of Internet Intermediaries

There is no book dedicated to the doctrines and remedies which regulate the legal liability of internet intermediaries. This is surprising, given that we live in an era in which almost all communications and transactions rely upon services provided or facilitated by such intermediaries. Those services are both increasingly complex and vital to modern culture, commerce, and public and private life.

The law has adapted to these technological changes with impressive speed and flexibility through a mixture of metaphor, ad hoc decision-making and legislative intervention. However, the resulting system of rules and precedents can be difficult to navigate for students, practitioners, and judges alike.

This work aims to begin the cartographic exercise of mapping the extension of existing principles onto the internet. It provides a detailed historical account of secondary liability rules, relevant statutes and regulatory schemes, and their current and potential future application to online services. It is anchored in English and European Union law, but also refers to numerous decisions of courts in Australia, Canada, New Zealand, and the United States.

Necessarily, this work cannot hope to present a complete map. Its main concern is secondary liability, not primary, though the lines between the two are often indistinct. This has led to some conspicuous but necessary omissions—such as the scope of primary liability in copyright or for breach of contract—for which it will be necessary to consult other specialist works.

This work developed out of doctoral research on secondary liability which was undertaken in the Faculty of Law at the University of Oxford, then substantially expanded and updated. I am particularly grateful to my supervisor, Professor Roderick Bagshaw, and examiners, Professors Graeme Dinwoodie, Lionel Bentley, James Edelman, Ben McFarlane, and Dr Justine Pila. I am also indebted to my friends and colleagues, who made the task of research an enjoyable and fruitful one. Any errors are, of course, my own.

I would also like to acknowledge the generous support of the Clarendon Scholarship Fund, the Oxford–Australia Scholarship Trust, and Magdalen College, Oxford, without whose assistance the research preceding this work would not have been possible.

A particular challenge in writing a work of this kind is the rapid pace with which the law continues to evolve. To take one example, at the time of writing the Investigatory Powers Bill 2016 (UK) (considered in chapter 17) is in Committee, where it is the subject of welcome debate aimed at clarifying its many ambiguities. Similarly, many important cases are the subjects of pending appeals, references to the Court of Justice of the European Union, or imminent statutory reform at both European and national levels.

It will provide little comfort to readers that the pace of change is only likely to increase. I have therefore tried to anchor this work in a wider historical context, in the hope that what seems complex and chaotic today can be understood more readily in light of how earlier technologies of dissemination and reproduction have been regulated in the past. I have endeavoured to state the law as at March 2016. While some of the predictions and observations made in this work will inevitably turn out to be wrong, I hope that in making them the path becomes a little clearer.

Jaani Riordan

April 2016

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