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The Liability of Internet Intermediaries The Liability of Internet Intermediaries

Contents

The Liability of Internet Intermediaries The Liability of Internet Intermediaries
1

Objectives 1.05

2

General introduction 1.13

3

The rise of internet intermediaries 1.18

3.1

Disintermediation 1.21

3.2

Protection 1.27

3.3

Expansion 1.35

3.4

Balancing 1.43

4

Types of liability 1.49

4.1

Primary liability 1.50

4.2

Secondary liability 1.53

4.3

Injunctive liability 1.57

5

Sources of liability 1.61

5.1

Domestic sources 1.63

5.2

European Union law 1.66

5.3

Human rights 1.75

6

Remedies against internet intermediaries 1.81

6.1

Monetary remedies 1.83

6.2

Injunctive remedies 1.88

7

Overview of this work 1.105

1.01 Internet intermediaries are essential features of modern commerce, social and political life, and the dissemination of ideas. Some act as conduits through which our transmissions pass; others are custodians of our personal data and gatekeepers of the world’s knowledge. They supply the infrastructure and tools which make electronic communications possible. These services encompass a vast ecosystem of different entities: internet service providers, website operators, hosts, data centres, social networks, media platforms, search engines, app developers, marketplaces, app stores, and others—many of which are household names.

1.02 The legal principles that apply to these services have, by necessity, evolved rapidly. In some cases, these developments have been statutory, as in the case of copyright blocking orders and safe harbours. In other cases, the garden of the common law has progressively grown to entangle new forms of wrongdoing by its familiar tools of analogical reasoning. These changes are accounted for by a relatively small number of cases. However, a large number of domestic and EU instruments directly or indirectly regulate the liability of intermediaries. The result is a haphazard and increasingly unprincipled patchwork of liability rules, doctrinal extensions, and remedial innovations.

1.03 Given the central role of internet intermediaries in electronic communications, their liability is of considerable interest to a society that values the continued freedom and utility of the internet. Like any other arena of human activity, the internet will inevitably house a population of wrongdoers. Some wrongs are new phenomena made possible by digital networks, others merely the recurrence of familiar patterns of conduct in a new medium. As old doctrines are stretched and adapted to these environments, new patterns of activity must be translated into recognised categories of wrongdoing. Inevitably this process exerts pressure upon the margins of those categories and the classes of defendants which may be made to bear primary or secondary liability for wrongs.

1.04 This chapter provides an overview of the work and gives a recent history of internet regulation and enforcement against intermediaries. It also examines the main remedies sought against service providers and explains the basic justifications for imposing liability upon secondary parties.

1.05 There is a natural regulatory impulse to impose liability upon messengers and other bearers of bad news.1 In many cases, the doctrinal foundations of such liability are poorly understood and difficult to fit within established categories. This work aims to begin the process of systematising and explaining the liability rules that apply to internet intermediaries and the remedies which may be sought against them.

1.06 The approach taken is broadly horizontal. This work analyses and maps the doctrines governing internet intermediaries’ liability for third parties who use their services to commit wrongdoing. It also considers the various classes of injunctions which may be used to uphold claimants’ rights online, and the main kinds of limitations upon those non-monetary remedies. This work offers a doctrinal analysis of the areas of law that are most commonly invoked by claimants in online disputes, and the general limitations, defences, and exceptions that may be relied upon by defendants.

1.07 The primary purpose of this work is to assist practitioners, courts, and regulators in understanding who may be liable for internet wrongdoing and how rights can be enforced online. The essential puzzle is not so much what constitutes wrongdoing—answering that question is a matter of applying existing doctrines in largely well-understood ways—but rather to identify the boundaries of those doctrines in their application to secondary parties, such as internet intermediaries.

1.08 This work does not comment on whether the internet is intrinsically a force for good or a pernicious platform of inequality, vilification, and abuse. Instead it focuses on the positive application of doctrines and remedies to internet intermediaries. It proceeds from the starting point that liability rules should uphold rights, respect the rule of law, deter wrongful conduct, avoid deterring lawful conduct, and encourage desirable forms of innovation and behaviour.

1.09 The doctrines and remedies considered in this work can be useful to claimants who wish to enforce their rights online. Equally, the limitations and pre-conditions discussed in this work may be relied upon by service providers to avoid or limit their liability. It is hoped that these doctrines and the limitations upon them are not applied indiscriminately, but sensitively moulded with a view to encouraging desirable properties of technology and human behaviour.

1.10 A secondary purpose of this work is to offer a rational description of the balancing exercises, limitations, and exceptions that are used to restrict liability and remedies sought against internet intermediaries. Courts are faced with the unhappy challenge of developing meaningful remedies despite ever-greater possibilities for wrongdoing, while achieving a fair balance between the interests of claimants, service providers, and their users. Succeeding in doing so while respecting fundamental properties of the internet’s design—and preserving the freedom of internet intermediaries to provide open, transparent, and neutral conduits for information—is not easy.

1.11 The focus of this work is strongly shaped by EU law, which regulates the position of information society service providers and the enforcement of injunctive remedies in certain contexts in an ever-expanding way. However, the particular focus is the law of England and Wales. Comparative reference will also be made to the laws of other EU member states, and to other common law jurisdictions such as Australia, Canada, and New Zealand.

1.12 The liability of internet intermediaries too often reflects ‘[t]hat codeless myriad of precedent’ and ‘wilderness of single instances’.2 In charting the boundaries of liability and seeking to draw connections between different areas of law, it is hoped that this work assists courts, practitioners, and scholars in developing clearer and more coherent rules to govern the next generation of internet intermediaries and disputes involving their services.

1.13  Ubiquity of the internet. The internet is now ubiquitous. Its constituent systems, networks, and protocols are essential if not always apparent features in daily life. For a majority of Britons, the internet is now their first source for locating information,3 with most consulting search engines and Wikipedia at least 12 times each day.4 Over half use Facebook and other social intermediaries to communicate with friends and conduct human relationships; one-third sell goods or services using online marketplaces such as eBay.5 Public sector cuts have seen growth in the range of government services delivered online, with more than 922 million visits to the GOV.UK portal during 2015.6 Globally, productivity tools such as online banking, email, and telephony produce an average of 144.8 billion daily messages sent to 3.4 billion email addresses.7 More than 1.5 billion people share information via social networks, hosted weblogs, and media-sharing platforms.8 These services are, in short, pervasive and indispensable to our social, economic, and political lives.

1.14  Role of intermediaries. By design, this activity relies upon internet intermediaries to create, store, and transmit information. For example, whenever a person accesses a website, their browser will use (1) a connection supplied by an internet service provider to query (2) a Domain Name System (‘DNS’) server and determine the domain name’s associated Internet Protocol (‘IP’) address. Google’s DNS server alone processes over 70 billion requests per day.9 Upon receiving a response, the browser will request the webpage from (3) the remote host on which it is stored, which will then transmit the data back to the user’s terminal. In practice, many other services are interposed: network operators, proxies, platforms, and domain registries, among others.

1.15 These internet resources are recognised as critical national infrastructure, upon which energy, healthcare, and transportation services depend.10 They are increasingly regarded as basic utilities akin to water or electricity.11 When parties supply these services, they deal with substantial quantities of information authored, edited, and uploaded by others.12

1.16  Economic importance. Internet intermediaries continue to grow in complexity and catalyse national economic growth. By one estimate, Google’s index has doubled in size to 40 billion pages since 2009,13 while the total number of indexed Uniform Resource Locators (‘URLs’) exceeded 1 trillion in 2008 and has since exceeded useful estimation.14 ISPs connect 77 per cent of British households, while access via mobile handsets has doubled in the past year.15

1.17 Few classes of actors have so rapidly acquired such importance to the national economy. One report estimated the contribution of the communications sector at 4.1 per cent of the United Kingdom’s GVA, of which 2.4 per cent consisted of telecommunications services and 1.7 per cent of internet content services.16 Another report estimated their contribution at 5.4 per cent of GDP and concluded that they have accounted for 23 per cent of British economic growth during the previous five years, and 21 per cent in other developed economies.17

1.18  Overview. Given the rapid expansion of internet intermediaries and their legal regulation, it is helpful to set out a very brief recent history of internet liability rules. Those rules are the by-products of a hard-fought contest in which public and private actors have sought to determine liability rules favourable to their business models and interests.

1.19  Main phases. For convenience, we divide the recent history of internet regulation into four overlapping phases: (1) disintermediation, in which ‘cyberspace’ and its actors were treated as an unregulated anarchy of open communication (1990s); (2) protection, in which territorial content rules coagulated and service providers acquired immunity from certain forms of liability through a patchwork of safe harbours (early 2000s); (3) expansion, in which new liability rules developed in national and international institutions (late 2000s); and (4) balancing, in which the clamour for stronger enforcement encountered limitations in the fundamental rights of intermediaries and their users (2010s).

1.20  Regulatory cycles. These phases do not have clear boundaries and they can be described in different ways.18 Taken together, they reflect a cyclical pattern of technological innovation, commercialisation, exploitation, and rule-making.19 The liability of internet intermediaries is an evolving battleground—a Kronosian cycle of innovation, market disruption, and regulation in which courts and Parliament periodically rebalance wider interests of competition and economic policy, human rights, innovation, regional and international trade policy,20 and the complex incentive structures underlying primary legal norms. However described, the boundaries of service providers’ liability have been central though under-acknowledged features of this battle.

1.21  Absolute safe harbours. During the early years of the networked society, the internet was an open and largely unregulated medium. In the United States, providers of an ‘interactive computer service’ were granted immunity from most forms of tortious liability.21 These safe harbours were interpreted broadly—mostly in the context of defamation actions against ISPs and bulletin boards.22 Many questioned the legitimacy of national governments laying claim to sovereignty over internet services at all, since they might not be localisable to particular physical dominions.23

1.22  Cyber-optimism. Others argued that regulation was unnecessary because the internet would inevitably usher in a new age of democratisation and global prosperity.24 Internet intermediaries were seen as harbingers of freedom—pioneers and colonists in a new world whose unfamiliar conditions warranted special legal treatment:25 ‘cyberlaws’ for ‘cyberspace’.26

1.23  Exceptionalism. The global ecology of internet liability was one of optimistic denial: intermediaries would not be regulated directly; instead, their code would be regulated—largely by market forces—and that code would in turn define the new borderless world.27 Certainly, very little evidence exists of early internet litigation or legislation in the United Kingdom.28 Even as metaphors borrowed from physical space found acceptance,29 a tendency emerged to treat the internet as intrinsically different from other information revolutions. Unlike print, radio, and television, the internet enabled many-to-many communication and not simply one-to-many broadcasting. Networked communications thus reversed a trend, observable for at least 150 years, towards the simultaneous expansion of information dissemination and the concentration of its production among a handful of increasingly powerful industries.30

1.24  Intermediation. Despite being right about the enormity of these changes to production and dissemination, the cyber-anarchists were wrong in three crucial respects. First, the internet did not bring about the widespread disintermediation assumed by many ‘cyber-anarchists’.31 By the close of the twentieth century, intermediation had increased sharply as consumers turned to search engines, ISPs, online marketplaces, and portals to filter and aggregate internet content, thereby reducing the transaction costs associated with navigating the ‘exaflood’ of new data, identifying relevant information, and measuring its reliability.

1.25  Gatekeeper regulation. Second, the internet did not come to be accepted as a ‘Wild West’ in which wrongdoing was incapable of regulation.32 Online activities were mediated by a limited group of powerful facilitators, who proved ‘no less amenable’ to being gatekeepers for various civil wrongs.33 The results of this regulation have, in large part, generated the need for this work.

1.26  Multiplication of wrongdoing. Third, most wrongdoing carried out online was not new and remained harmful. As Solove reminds us: ‘Gossip, rumor, and shaming have been with us since the dawn of civilization.’34 Technology has also long facilitated unauthorised copying; in the mid-eighteenth century, authors complained of the diffusion of ‘surreptitious and pyrated’ editions,35 while Defoe predicted ‘a general Rapsody of Piracy, Plagiarism, and Confusion’.36 In Victorian England, increases in print dissemination brought about by advances in plate technology, telegraphy, and economies of scale brought us tabloids, penny-presses, and their ‘high-spiced wares’.37 In trade marks, ‘piraterie pharmaceutique’ is documented as early as 1812.38 The arrival of the internet did not fundamentally change these old wrongs, but merely multiplied their potential consequences and made it harder to identify and enforce rights against their perpetrators.

1.27  Territorial sovereignty. The fourth reality to emerge from the nascent information economy was that acts which occurred on the internet were readily localisable to physical space. Internet intermediaries were not global actors in ethereal cyberspace, but local entities which acted through physical machines to cause tangible harms in specific places.39 Content became territorially fragmented as geolocation and filtering technology allowed service providers to avoid liability under disharmonised censorship regimes in both developing and developed countries.40 For example, access could be restricted in regions where publication of material may be a contempt of court41 or infringement of copyright.42 The emergence of territorial localisation allowed technological limitations to accommodate divergent legal rules in different nation states.

1.28 By the early 2000s, many regulators and industry participants accepted that it was desirable to shield internet intermediaries from at least some of the liability which they might otherwise face under conventional, ‘offline’ liability rules. Four justifications were commonplace.

1.29  Burden of monitoring. First, to hold service providers liable for all harms facilitated by their services would impose an impossible monitoring burden, given the rate at which new information is uploaded and transmitted.43 For example, in 2014, YouTube stored more than 100 hours of video per minute,44 while Facebook transmitted over 15 billion user-uploaded photographs per day.45 Even the most advanced algorithms cannot determine whether a statement is defamatory, a photograph is used for fair dealing, or information is confidential. Imposing prima facie liability in these circumstances would, it was argued, be unfair and require an impossibly large investment to review and quarantine tortious content.

1.30  Chilling effects. The second reason for limiting liability was to discourage excessive monitoring of networks and overzealous removal of potentially tortious content, which might chill speech and endanger privacy by encouraging intermediaries to act on allegations made in relation to content which later turns out to be lawful.46

1.31  Neutral conduits. Third, conscripting service providers to police content was seen as inconsistent with their technical status as neutral conduits. Deep philosophical resistance emerged to the idea of forcing gatekeepers to regulate information,47 which can partly be understood as a reaction to the enforcement reflex of content industries and governments who sought to control technologies of dissemination.

1.32  Innovation and growth. Finally, limiting liability was thought to encourage innovation and economic development, since unlimited liability might deter firms from investing in network infrastructure and online services which created positive externalities.48

1.33  E-Commerce Directive. Liability rules in the United Kingdom were profoundly affected by the transposition of the E-Commerce Directive, which continued a trend towards the Europeanisation of telecommunications and intellectual property policy.49 Horizontal safe harbours protected internet intermediaries that acted passively and neutrally from nearly all forms of monetary, civil, and criminal liability, but only for specific types of conduct. These safe harbours are discussed further in chapter 12.

1.34  Qualified safe harbours. Under this weak view of immunity, internet intermediaries enjoyed immunity only until they received knowledge of wrongdoing or intervened in transmission, at which point they came under an obligation to remove or restrict access to the material. This created a paradox whereby internet intermediaries had strong incentives not to intervene by moderating or reviewing third parties’ content. However, the Directive failed to harmonise secondary or injunctive liability, and national courts have construed the safe harbours inconsistently and often narrowly.

1.35  Competing interests. Early internet intermediaries existed in largely independent, function-specific spheres, functioning as feudal kingdoms with their own systems of membership, regulation, and privileges.50 Outside their walls, technology companies entered a battle with content industries to enclose and ‘propertise’ the electronic commons: the winner would define favourable liability rules to regulate information and its conduits; the loser would need to internalise the cost of user misbehaviour. However, as the networked information economy evolved, content, reputation, property, and identity became increasingly disaggregated in ways that threatened to upset incumbent industries51 and traditional methods of enforcing legal rights. In parallel, the largest internet platforms were aggregating services and growing rapidly in size and power.

1.36  Enforcement problems. As the quantity of online material grew, so did the prevalence of tortious content and services enabling its creation and dissemination. A growing corpus of scholars argued that because internet industries were coming of age, early policies of immunity were no longer necessary to encourage growth.52 Because there was often no better defendant, they argued, it was reasonable to use liability rules to create ex ante incentives for internet intermediaries to police misconduct where they had the technological capacity to do so and the cost of preventative steps was less than the overall reduction in harm. Claimants found it increasingly difficult to remove tortious content, which grew like hydra: every website or service removed spawned two new imitators.53 Scholars heaped criticism upon broad American immunities from tort liability,54 observing that free expression was increasingly mediated and filtered by a select group of commercially motivated service providers.55

1.37  Copyright enforcement. When copyright enforcement against primary infringers began to fail, claimants sought to target points of dissemination from which infringing material was located, distributed, and exchanged. This was a ‘seismic shift’ in enforcement strategy,56 which saw the emergence of new theories of secondary liability principally to deal with operators of peer-to-peer (‘P2P’) file-sharing networks. During this period, several generations of P2P protocols were created, sued, and forced into bankruptcy or closure by copyright owners.57 Each sought to evade the operation of gatekeeper enforcement regimes by employing increasingly decentralised network designs, but in doing so they inevitably introduced new intermediaries. No peer distribution system, it emerged, was entirely ‘pure’; someone was always needed to supply network access and infrastructure, maintain an index of files and peer nodes, and distribute client software.

1.38 In conjunction with self-regulation, the expanded secondary liability rules applied in actions between private litigants became de facto regulators of new internet technologies, communications,58 business models, consumer rights, and speech.59 Policymakers tended to respond to this expansion in three ways.

1.39  Modernisation of liability rules. The first group sought to reconceptualise primary wrongdoing in a way that better reflected the needs of technology, users and internet intermediaries, particularly in the context of internet copyright enforcement. In the United Kingdom, the Gowers Review and Hargreaves Review recommended the modernisation of primary liability rules for the internet, while recommending that certain intermediaries, such as ISPs, assist the enforcement of those rules.60

1.40  Law and economics. The second group opposed regulatory ‘exceptionalism’ and justified the retention of existing legal norms by reference to theories of law and economics.61 Internet intermediaries were seen as just another set of gatekeepers to whom liability incentives could properly be applied if they were the least cost avoiders of harm.

1.41  New regulatory schemes. The third group sought to develop new methods for detecting and deterring copyright infringement, leading to the enactment of sui generis ‘graduated response’ and notification schemes.62

1.42  International trade agreements. The overall ecosystem of online wrongdoing evolved in what some described as an ‘arms race’ between claimants, innovators, and tortfeasors.63Ex post liability rules expanded to accommodate new distribution technologies which threatened existing economic practices and social expectations. Faced with this interminable cycle of regulation and circumvention, some courts lamented the ‘quicksilver technological environment with courts ill-suited to fix the flow of internet innovation’.64 In parallel, secondary liability rules were placed on the international trade agenda and propagated throughout the world by means of free trade agreements, bilateral investment treaties, and new multilateral agreements designed to export American ‘gold standards’ of liability.65

1.43  Fundamental rights. Most recently, secondary liability rules have developed new limits derived from fundamental rights and principles of free trade. As the European Parliament has reminded member states, enforcement measures against internet intermediaries must not ‘conflict...with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness’.66 Such a general statement conveniently ignores the fact that these objectives are not always consistent.

1.44  Shift towards injunctive relief. This phase is characterised by a departure from ex post liability under monetary liability rules in favour of ex ante prevention using non-monetary obligations enforced by injunction. European balancing criteria place upper limits on the terms of such relief, though many scholars have criticised them as creating a ‘messy legal fog’.67 Civil society groups have been particularly active in resisting stronger enforcement, mobilising to develop charters of internet rights and oppose legislation and trade agreements perceived as contrary to internet freedom.68 These developments reflect a gradual recalibration towards more balanced liability rules for internet intermediaries.

1.45  Co-regulation. These trends have led internet regulation away from judicial incrementalism towards co-regulatory and legislative models, whose implications are not yet fully understood. Scholars continue to argue that wider liability would ‘disrupt the existing Internet ecosystem to a degree that could stifle overall progress’.69 However, there is little empirical analysis or consensus about the wider effects of liability upon content, innovation, and freedoms. Instead, the limits of responsibility are being specified by reference to doctrines imported from public and European law. This reflects the reality that the ‘internet’ is no longer a distinct regulatory subject, but broadly coterminous with other areas of law. Service providers have lost their status as vulnerable innovators in need of protection from incumbents and are instead being viewed as both victims and agents of wrongdoing.

1.46  Further technological changes. This adjustment follows two important changes: first, with the emergence of ‘web 2.0’ platforms and cloud computing,70 users are increasingly vulnerable to decisions by internet intermediaries that affect their welfare or interfere with fundamental rights, just as technical and architectural design choices can dictate the utility of those platforms.

1.47  Changing status of intermediaries. Second, internet intermediaries are becoming larger and more susceptible to regulation, as vertical integration and network effects transform them into the incumbents they once unseated.71 Large services operate in two-sided markets characterised by strong network effects, which has led to increasing scepticism of the dominant positions enjoyed by firms such as Google72 and Facebook.73 Those services now possess unparalleled power to influence the reputation,74 free expression,75 personal data,76 and property rights77 of others. This has produced a reactionary impulse to regulate those services, and an assumption that they are able to bear certain duties to regulate or restrict access to unlawful content.

1.48 In short, the battle to define the scope of secondary liability rules and, indirectly, the functions and limits of internet technology continues to be waged. Because of their visibility and perceived control, large internet intermediaries remain the focus of current regulatory efforts and face pressure from claimants and governments around the world to enforce private rights and public policies online. Intermediaries seek to reduce the expected costs of compliance through a combination of lobbying and voluntary action.78 Set against these pressures, an emerging suite of limiting principles, bolstered by community activism, appears to be influencing the normative characteristics of internet communications—‘who gets to say what, to whom, and who decides?’79—and forging an unsteady, contested equilibrium between the social and economic practices of intermediaries, and the rights of claimants and users.

1.49  Terminology. As with many emerging fields of law, the liability of intermediaries is characterised by a fragmentation of terminology and confusion as to the underlying basis of legal remedies. This risk of confusion is even greater when claims lie at the margins of existing doctrines, or seek to apply those doctrines to new technologies or wrongdoing. For clarity and consistency, this work adopts the terminology of primary, secondary, and injunctive liability to classify the kinds of legal duties which may be imposed upon intermediaries. These terms are discussed further in chapter 5; the following paragraphs provide an overview.

1.50  Definition. Primary liability arises where a defendant is a primary wrongdoer—in other words, where a person engages in tortious activity by his or her own acts or omissions, and that activity is not excused or otherwise rendered lawful. This is the familiar kind of liability which ordinarily arises for breaches of legal and equitable duties. Primary wrongdoers have by their own conduct satisfied the elements of a cause of action. The scope of their liability and the available remedies depend on the type of wrongdoing in question.

1.51  Boundaries. The outer limits of primary liability are defined by two sources: (1) the legal definitions of the elements constituting the cause of action in question, and (2) general doctrines which augment or limit the scope of liability, such as joint tortfeasorship, contribution, and safe harbours. It is a source of some confusion that liability as a joint tortfeasor is said to be primary in the sense of being joint and several with all other wrongdoers, yet secondary in the more technical sense that it concerns ‘liability for the act of another’.80 There are numerous examples of legal doctrines in which a defendant’s participation in wrongdoing by third parties may give rise to primary liability, yet still depends in some way on the wrongdoing of another.81

1.52  Relevant examples. The primary liability of internet intermediaries is examined in this work in the areas of defamation, trade mark infringement, breach of confidence, misuse of private information, breach of data protection, and miscellaneous civil and criminal wrongs.82 However, wider treatment of the doctrines and remedies in each of these areas is left to specialist works. Additionally, this work considers primary liability arising under regulatory schemes providing for data retention and interception, and to pay costs.83

1.53  Definition. Secondary liability is liability which has as one of its preconditions a finding of at least prima facie wrongdoing by a third party. A secondary wrongdoer faces liability either because they have causally contributed to wrongdoing by someone else to a degree recognised as legally culpable, or because they stand in a recognised relation to the primary wrongdoer (eg as employer or principal).84

1.54  Accessories. Secondary wrongdoers are sometimes described as ‘accessories’ and their secondary liability is sometimes also referred to as ‘accessory liability’.85 Although both terms are valid and have found widespread acceptance, the non-primary liability of intermediaries is described in this work using the terminology of secondary liability, in order to distinguish it from criminal secondary liability and to encompass forms of secondary liability (such as vicarious liability) in which it is difficult to describe the secondary party as someone who acts as an accessory to wrongdoing.86

1.55  Boundaries. Secondary liability begins where primary liability ends. As such, the scope of secondary liability is intrinsically linked to the scope of primary liability: the wider the definition of the primary wrong, the less need there is for doctrines of secondary liability to be invoked and the narrower their field of operation.87 The limits of secondary liability are to some extent fluid but delimited by reference to recognised connecting factors, such as doctrines of procurement, common design, authorisation, and (in equity) dishonest assistance. Many cases involving intermediaries press at the outer margins of these categories and, for this reason, invite careful scrutiny.

1.56  Relevant examples. The secondary liability of internet intermediaries is examined in this work in the areas of copyright, trade mark infringement, passing off, breach of confidence, and misuse of private information.88 An introduction to the general principles of tortious and equitable secondary liability is also provided in chapter 5.

1.57  Definition. As noted in section 3.4, enforcement against internet intermediaries is increasingly characterised by claims for injunctions. Unlike primary or secondary liability—which normally create obligations to pay money—injunctive liability is non-monetary in the sense that an injunction obliges the respondent to comply with its terms, rather than to compensate the successful applicant for loss or repay gains made at his expense. However, the costs of complying with an injunction (especially a mandatory one) may be substantial.

1.58  Boundaries. The courts’ jurisdiction to grant injunctions is essentially unlimited, provided there is in personam jurisdiction over the parties to an action.89 However, the practice of granting injunctions is limited in a number of ways: in particular, by the need for proof of actual or threatened wrongdoing, the principles of necessity, proportionality, and effectiveness, and other limitations arising at common law and derived from EU law. Moreover, as an equitable remedy, the grant of an injunction is discretionary and may be refused for various reasons. These and other limitations are the subjects of chapter 13.

1.59  Injunctions without wrongdoing. Additionally, doctrines have developed which occasionally permit injunctions to be granted against a respondent independently of liability for wrongdoing under a cause of action; the Mareva injunction, Anton Piller orders, and Norwich Pharmacal relief may be examples. These doctrines reflect the wide powers of courts to grant injunctions, and the evolving principles according to which those powers are exercised. These principles are discussed further in the context of internet intermediaries’ non-monetary liability in chapters 14, 15, and 16.

1.60  Relevant examples. The range of injunctive remedies able to be sought against internet intermediaries is summarised in section 6.2.

1.61 This work is one consequence of a worldwide shift in the attribution of liability for internet misconduct from primary to secondary wrongdoers and from monetary to non-monetary remedies. Those shifts were partly described in section 3. The enforcement policies reflected in these trends are complex and dynamic, and closely reflect changes in technologies for creating and disseminating information.

1.62 There are many reasons why a claimant may seek to impose monetary or non-monetary liability upon an internet intermediary. It may have caused them harm; they say wrongly. It might have the power to avert or stop wrongdoing. It may be cheaper or easier to sue the provider of a service rather than an anonymous user or someone domiciled abroad. The intermediary may simply have deeper pockets than the primary wrongdoer. These and other reasons are explored further in chapter 3. The following sections identify the main sources of rules governing internet intermediaries’ liability.

1.63  Causes of action. The main sources of liability rules are the doctrines that define the boundaries of legal and equitable wrongdoing under English law. Causes of action arise in innumerable circumstances and this work can only examine some of them. An overview of the areas covered by this work is given in section 7.

1.64 These areas of law are, in the case of intellectual property rights, predominantly or even exclusively statutory. Other areas, such as defamation, are characterised by their reliance upon judicial development, subject to periodic statutory intervention. Rather than duplicate the work of specialist texts, the focus of this work is on the boundaries of these causes of action in the context of internet wrongdoing, and the principles that define who may be liable for their commission.

1.65  General principles. Liability is in some circumstances expanded or limited by general principles which apply throughout the civil law. For example, doctrines of joint tortfeasorship have the effect of augmenting intermediaries’ liability in clearly defined circumstances. These are discussed further in chapter 5.

1.66  Influence of harmonisation. The liability of internet intermediaries is increasingly shaped by European influences. A number of EU directives and regulations are relevant to the liability of intermediaries; their effect is increasingly to harmonise the rules of primary liability, and limits upon liability, in a number of areas. The general trend appears to be towards greater harmonisation of the rules applicable to information society services which operate in Europe.

1.67  Effect on national law. National courts are bound to give effect to these directly applicable sources of law, insofar as possible. The relationship between domestic and European law is discussed in greater detail in specialist works.90 However, it is worth examining briefly the source and extent of those obligations and their consequences for intermediaries against whom remedies are sought in the United Kingdom whose basis lies in EU law.

1.68  Private enforcement. The starting point is that a directive does not directly confer any rights upon private litigants that are enforceable in proceedings against other private litigants. In Mono Car Styling SA v Dervis Odemis, the Court of Justice explained that:

according to settled case law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, so that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties ...91

1.69  Interpretative obligations. Nevertheless, a national court must interpret domestic law, so far as possible, in light of the wording and purpose of any relevant directive.92 For this purpose, the traditional rules of English statutory interpretation do not apply.93 No ambiguity is required. The extent of the process of conforming interpretation was set out in R v A [No 2] by Lord Steyn, in the context of an interpretative proviso being applied to Convention rights:

the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point. The court must ‘strive to find a possible interpretation compatible with Convention rights’.94

1.70 The approach is similar to the interpretative proviso contained in section 3 of the Human Rights Act 1998, and permits courts to ‘depart from the precise words used, eg by reading words in or out’.95 In this context, Lord Nicholls described this duty as being ‘to strive to find (if possible) a meaning which would best accord with Convention rights’.96

1.71  Impossibility. Although broad, a conforming interpretation is not entirely unconstrained. Two main limits apply. First, a national court may not adopt an ‘impossible’ interpretation.97 In other words, it may not reach an interpretation of national law contra legem, or contrary to general principles such as legal certainty and retrospectivity. For example, a statutory provision which requires publication of a notice could not be read so as to prohibit publication of a notice, but a requirement to publish a notice on yellow notepaper might well be construed to encompass any colour or even medium.

1.72  Consistency with cardinal features. Second, the conforming interpretation must ‘go with the grain’ and ‘be consistent with the underlying thrust’ of the domestic statute. It may not ‘be inconsistent with some fundamental or cardinal feature of the legislation’.98 The court must not transgress the boundary from interpretation into amendment.99

1.73 In Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV, the Court of Justice emphasised that the national court must consider the body of national law ‘as a whole’.100 That includes other statutes and fundamental principles of domestic law. The national court may only do what lies within its jurisdiction, having regard to the whole body of national law, to adopt a compatible interpretation.

1.74 If it is not possible to interpret a transposing domestic instrument compatibly with directly effective rights under EU law, the Court may be obliged to disapply the instrument to that extent.101 This power of disapplication arises under section 2(4) of the European Communities Act 1972. Its effect is not to render United Kingdom legislation invalid, but merely to disapply the provision to the extent necessary to give effect to the supremacy of EU law.102

1.75  Relevance to internet litigation. The expansion of human rights instruments has influenced the liability of internet intermediaries in two ways. First, those instruments oblige courts to take account of claimants’ rights in ways that sometimes require remedies to be conferred, reshaped, or expanded. Second, those instruments recognise the rights and freedoms of intermediaries and their users in ways that sometimes place limits on the remedies available to claimants, or require a balancing exercise to be undertaken. Two main instruments are relevant.

1.76  International instruments. The first source of human rights standards is the Convention for the Protection of Human Rights and Fundamental Freedoms.103 That treaty, together with its protocols (and, in particular, the First Protocol),104 has been interpreted and applied in numerous decisions of the European Court of Human Rights.

1.77  Domestic transposition. By virtue of the Human Rights Act 1998, English courts and tribunals are required to give effect to these principles in two main ways. First, where those bodies are determining a question involving a Convention right they are obliged to take into account, among other things, decisions of the European Court of Human Rights.105

1.78  Interpretative proviso. Second, all interpretation of primary and subordinate legislation must occur subject to the proviso found in section 3(1) of the 1998 Act to read and give effect to those domestic instruments in a way which is compatible with Convention rights, so far as it is possible to do so. The impact of Convention rights in claims against internet intermediaries is considered further in chapter 9.

1.79  EU instruments. The Charter of Fundamental Rights of the European Union106 recognises a number of rights, freedoms, and principles that are engaged by remedies involving internet intermediaries. These are discussed further in chapter 13. In summary, the most relevant Charter rights are the rights to property, respect for private life and communications, and protection of personal data, and the freedom of expression and freedom to conduct a business.

1.80  Relevance to domestic actions. National legislatures and courts are obliged to consider Charter rights when they are implementing EU law.107 The main requirement is that any limitations on the exercise of Charter rights and freedoms must (1) be provided for by law, (2) respect the essence of those rights and freedoms, (3) be necessary, and (4) meet a general interest objective or the need to protect the rights and freedoms of others.108 Article 52(1) is discussed further in chapter 13.

1.81  Overview. This section introduces the main remedies considered in this work. For convenience, they are divided into two classes: monetary and injunctive (or non-monetary) remedies. Monetary remedies are sometimes referred to as substantive liability, which reflects the concern of these remedies with compensation or restitution for wrongs. Non-monetary remedies are sometimes described as intermediary or injunctive liability, since they are normally associated with court orders to cease or prevent wrongdoing by a third party.

1.82 The two classes of remedies overlap to some degree. Both are normally available against a wrongdoer. As against a non-wrongdoer, injunctive relief may sometimes be available, but only in accordance with established legal and equitable principles. Service providers are sometimes insulated against monetary liability, but not against injunctive liability. However, some limits apply to injunctions that do not always apply to monetary remedies. These limits are explored further in chapters 12 and 13.

1.83  Civil liability. This work is concerned chiefly with civil liability. Remedies for civil liability can be monetary, as in the case of orders to pay damages or disgorge profits.109 The orthodox view is that such orders enforce secondary duties to correct losses or gains arising from breaches of primary duties. These obligations to pay are backed by the threat of executive enforcement and asset seizure. This work does address the principles governing the quantification or heads of loss recoverable, for which readers are referred to a specialist work.110 It suffices to note that almost all information torts recognise an obligation on the legally responsible party to pay money.111 Preconditions for monetary remedies can be broadly grouped under four headings.

1.84 First, strict liability rules require an intermediary to internalise the cost of misconduct without proof of fault. Where service providers are required to pay for the social harms of their users’ wrongdoing, tort law increases the expected penalty—and thereby the deterrent effect—of facilitating that wrongdoing, with the theoretical consequence that such services adjust their activities to reduce wrongdoing to an optimal level.112 Strict liability has the advantages of being simple for courts and defendants to assess, and allowing efficient ex ante pricing decisions. However, although strict primary liability rules are common, strict secondary liability rules are rare, principally because it is unfeasibly costly for services to monitor the lawfulness of all users’ activities. This means any deterrence is likely to be limited.

1.85 Second, internet intermediaries may be required to act reasonably to prevent or deter primary wrongdoing. This represents a lower level of monitoring and reduces the risk of over-deterrence by holding service providers to an objectively determined but imperfect standard of conduct—for example, a rule which requires a website operator to remove defamatory postings ‘within a reasonable period’.113 Duties fixed by reference to external standards such as industry practices can operate more stringently than knowledge-based duties; for example, by imputing constructive knowledge of tortious material. This grants courts a more flexible lever with which to keep intermediary liability within proportionate bounds.

1.86 Knowledge-based standards furnish the dominant mechanism for European internet content regulation: notice-and-takedown. They impose obligations upon internet intermediaries to respond to wrongdoing only once they receive sufficient information to infer that wrongdoing has actually occurred. Less wrongdoing must be internalised, which encourages optimal ex post enforcement. To prevent wilful blindness, knowledge usually incorporates an objective measure.114 In equitable doctrines, dishonesty-based standards reflect similar but distinct principles, delimiting liability according to whether the defendant’s mental state was objectively culpable.115

1.87 At the other end of the liability rule spectrum, internet intermediaries can be fully exempted from monetary liability. Immunity has the advantages of certainty, subsidising nascent technology industries, and promoting ‘market-based self-help’,116 but has been heavily criticised by some commentators because it removes incentives that would otherwise exist for least-cost avoiders to intervene in enforcement action, even where that might be most efficient or necessary to uphold claimants’ rights.

1.88  Non-monetary liability. Alternatively, internet intermediaries may be ordered to interdict or prevent third parties’ tortious activities. These injunctive remedies are impervious to safe harbours, which ‘do not affect the possibility of injunctions of different kinds’.117 They are enforced, ultimately, by the criminal law of contempt and the associated machinery of incarceration. Liability in this second, non-monetary sense is both broader and narrower: it can sometimes be awarded without proof of wrongdoing, but typically protects more limited categories of interests.

1.89  Justifications for injunctions against intermediaries. Three justifications are commonly given. First, where ‘intermediaries are best placed to bring wrongful activities to an end’118—in other words, where they are least-cost avoiders—injunctive relief should enforce optimal gatekeeping functions in the event of market failure. Second, there may be circumstances in which the claimant’s Convention or Charter rights are engaged and an injunction is a necessary and proportionate remedy to protect them—subject to various upper limits discussed in chapter 13. Third, although a facilitator of wrongdoing may not itself be a wrongdoer in law, it may come under an equitable duty to assist claimants to halt that wrongdoing and enable relief to be obtained.

1.90  Rationale. The most common non-monetary remedy is removal, which simply requires the deletion of tortious content at its source. By ‘taking down’ such content, the service provider prevents further use of its services to disseminate the material.119 In practice, removal is imperfect. Copies may be cached or mirrored; the claimant may be unable to identify all of them or enforce orders against every source. Even assuming that all additional copies have been removed, it could easily be re-uploaded by a determined tortfeasor. Moreover, attempts to remove material can often backfire, drawing unwanted attention to the very material sought to be removed.

1.91  Typical respondents. Removal is most commonly sought against hosts or content distribution networks. Although normally by court order, it can be voluntary. For example, in December 2010, Amazon removed Wikileaks’ cloud storage service following pressure by the United States government.120 Additionally, large application-layer platforms—such as Facebook, Twitter, and WordPress—exercise a wide range of moderation functions, which include removal of tortious or inappropriate materials.

1.92  Relevant examples. This work considers the availability of removal remedies against intermediaries in a number of circumstances, including: copyright works (chapter 6), trade mark infringement and passing off (chapter 7), defamatory publications (chapter 8), confidential or private material (chapter 9), personal data (chapter 10), and various categories of unlawful information (chapter 11).

1.93  Rationale. Notification involves marshalling service providers to send notices to internet users from whom apparently tortious activity is detected. Notices perform two signalling functions: first, they indicate that the activity is wrongful (at least allegedly so), which the wrongdoer may not have realised; and second, like a letter before action, they tell him that somebody is watching his activities and might take further action if they do not cease. This might deter future wrongdoing by elevating the expected penalty.

1.94  Examples. Notification schemes have been enacted or proposed in the United Kingdom, France, Australia, New Zealand, South Korea, and the United States which require ISPs to forward notices to subscribers alleged to be copyright infringers,121 with the threat of escalating sanctions. Chapter 6 describes the United Kingdom approach and comments on its likely efficacy and proportionality.

1.95  Equitable disclosure remedies. An internet intermediary can be ordered to disclose information it holds about potential tortfeasors to enable claimants to pursue some legitimate action against them. The remedy of disclosure was first recognised by courts of equity as a duty enforceable by injunction. Today its boundaries are regulated by data retention, interception and access laws, and the principle of proportionality. Chapter 4 examines in detail the circumstances in which disclosure is available and the limitations that apply to these claims. Chapter 17 considers the interception and retention duties owed by communication service providers to public authorities.

1.96  Rationale. Blocking orders require a service provider to take steps to prevent its users from accessing tortious information using its services. This remedy does not directly target the existence of the tortious information but seeks to curtail its dissemination by preventing individual computers from retrieving it in a particular jurisdiction, or via a particular service provider. This is potentially useful where the gist of the tort lies in the consumption or reproduction of material rather than its existence per se. The object of the remedy is not the source host but rather a third party (typically but not always an ISP who supplies internet access to its subscribers).

1.97  Examples. Until recently, this remedy was largely unknown. Blocking technology was expensive, ineffective, and largely confined to corporate networks, university campuses, and authoritarian states. However, blocking is now emerging throughout Europe and elsewhere as a complementary remedy to notice-and-takedown: if tortious material cannot be removed at its source, it might yet be targeted and curtailed at its destinations. Copyright, trade mark, and other blocking remedies are discussed in chapters 14 and 15.

1.98  Removal of hyperlinks. A de-indexing order obliges an internet intermediary to remove a hyperlink to tortious material. In Europe, this remedy is a relatively new creation invented to deal with objections to the processing or retention of personal data.122 In other jurisdictions, the remedy has been used to order the operators of search engines to remove tortious materials from search results. Such orders are presently almost unknown in England. However, the government has indicated that it intends ‘to work with search engines’ to de-index ‘unlawful sites’,123 and the impact of the Google Spain decision may be an increase in voluntary and court-ordered de-indexing on data protection grounds.

1.99  Deprioritisation of hyperlinks. A related remedy is partial de-indexing or deprioritisation of search results. This would involve actively interfering in a search engine’s relevance algorithm to reposition tortious material, without removing that material from the index entirely. Critics have argued that such algorithmic interference violates search neutrality and risks distorting competition for search services.124 A framework for de-indexing remedies is considered in chapter 16.

1.100  Domain name cancellation. These injunctions require service providers (typically payment intermediaries) to disrupt a tortfeasor’s control over electronic and financial resources. First, domain name controllers may be ordered to withhold access to a registrant’s domain name. Traffic to that domain name can then be redirected to a new host, such as a warning page125 or law enforcement ‘honeypot’.126 Domain seizure differs from takedown and blocking orders in that it does not remove the original material but instead appropriates the domain name, which is no longer associated with the material. Unlike blocking orders, users are not prevented from reaccessing that server or the redirected domain name. Seizure is now employed routinely in the United States, where Immigrations and Customs Enforcement and the Department of Justice have seized nearly 84,500 domain names.127 However, serious criticisms have been made of false positives128 and the limited procedural safeguards governing seizure.129

1.101  Asset freezing. Second, payment intermediaries may be ordered to freeze tortfeasors’ assets; for example, to prevent funds from being dissipated, in effect cutting off their monetary supply. The objective is to preserve assets which could be used to satisfy judgment against primary wrongdoers, and also to reduce the financial benefits flowing to them, on the reasonable assumption that if the costs of serving tortious material grow roughly linearly with the number of users accessing that material, then without a viable source of revenue (typically advertising), such services will falter. Similarly, payment providers might be ordered to suspend transactions involving a notified website. These remedies are discussed in chapter 16.

1.102  End user disconnection. The most extreme form of enforcement is physical disconnection. This severs a defendant’s machine from the network of its host or ISP, preventing it and any downstream clients from accessing the internet. This measure is discussed most commonly in the context of copyright infringement by individual subscribers, but it has also arisen during warfare,130 the suppression of uprisings by authoritarian regimes,131 and the accidental severance of transoceanic cables.132

1.103  Political proposals. Following the 2011 London riots, the government indicated that it would consider whether to develop a ‘kill switch’ which would disconnect social networks during times of civil unrest.133 This proposal appears to have been abandoned, but disconnection continues to be discussed as an enforcement measure of last resort.134 Some scholars argue in favour of disconnection for limited purposes such as cybersecurity135—a view endorsed by a House of Lords committee which recommended that ISPs be obligated to disconnect customers whose machines have been compromised.136

1.104  Lesser access restrictions. Although disconnection is often analysed as a binary remedy, it is better understood as a spectrum of access restrictions ranging from outright disconnection at one extreme, to unfettered access at the other. Intermediate forms include: play-penning, in which a subscriber’s access is restricted to a pre-approved whitelist of websites and services for a fixed period; shaping, in which the subscriber’s connection speed is temporarily reduced; and suspension, in which access is terminated temporarily. Disconnection is not directly considered by this work, since it is usually targeted at end-users rather than internet intermediaries.

1.105  Overview. This work is divided into four parts. Part 1 is introductory. Chapter 2 illustrates the full spectrum of internet intermediaries and proposes a taxonomy to describe services which operate at different layers of the internet’s architecture.

1.106  Identifying a defendant. Part 2 explains the methods by which a defendant may be identified and selected in cases involving internet wrongdoing. Chapter 3 introduces several preliminary considerations and common problems that arise before the commencement of proceedings. Chapter 4 examines the equitable and statutory duties owed by service providers to disclose information about anonymous wrongdoers.

1.107  Scope of liability. Part 3 considers the scope of primary and secondary liability faced by internet intermediaries in seven areas of law. Chapter 5 introduces general principles of secondary liability rules in English private law. In general, these doctrines augment primary liability by defining a series of connecting factors which can be used to attribute blame to secondary parties.

1.108 Chapter 6 deals with copyright liability, focusing on principles relevant to secondary infringement by internet intermediaries. It discusses doctrines of ‘authorisation’ and joint tortfeasorship, which delimit responsibility for primary infringements carried out by others. These obligations have recently been paired with an emerging class of regulatory obligations under graduated response schemes.

1.109 Chapter 7 deals with trade mark liability and passing off. It explains how trade mark use is localised to particular territories and discusses the thresholds that determine whether and to what extent an internet intermediary may face liability for trade mark infringement and passing off committed by a third party. It also considers the effect of dispute resolution schemes which regulate the acquisition and use of domain names.

1.110 Chapter 8 addresses defamation. It begins with an account of the traditional ‘publication’ criterion, which delimits legal responsibility for the dissemination of defamatory statements. It then considers how this criterion has been applied to secondary internet publishers. It identifies emerging limits in the common law concept of publication, which are complemented by statutory safe harbours and defences.

1.111 Chapter 9 deals with breach of confidence and misuse of private information. It analyses the development and boundaries of the equitable wrong of breach of confidence, and considers how that wrong has been reshaped by the modern law of privacy.

1.112 Chapter 10 deals with data protection and the so-called ‘right to be forgotten’. It provides an overview of how the data protection regime affects internet intermediaries, with reference to the rights of data subjects and the obligations of service providers who are data controllers.

1.113 Chapter 11 deals with the regulation of internet content. It explains the rules that apply to malicious and obscene communications, video recordings, terrorist publications, official secrets, child sexual abuse material, gambling, tobacco advertising, and other types of content that are either prohibited or regulated in some way. It also briefly considers secondary liability for contempt of court.

1.114  Remedies and limitations. Part 4 considers remedies and limitations upon liability. Chapter 12 deals with safe harbours that insulate information society service providers against monetary liability for storage, transmission, and caching activities. It examines the origins of those safe harbours in the E-Commerce Directive and considers their preconditions and scope.

1.115 Chapter 13 deals with injunctive relief and the limitations upon it, including necessity, proportionality, effectiveness, and legitimate trade. It begins by examining limits derived from domestic sources, before turning to requirements of EU law. In this latter context, it considers the meaning of the requirement that a ‘fair balance’ be struck between the fundamental rights and freedoms of claimants, internet intermediaries and their users, and related limitations.

1.116 Chapter 14 addresses website blocking orders in the United Kingdom, while chapter 15 considers such orders elsewhere in the EU. These remedies offer a powerful toolkit with which to uphold the rule of law on the internet and provide meaningful relief to claimants. However, they are properly subject to various limitations.

1.117 Chapter 16 considers remedies to de-index material proved to be tortious but which cannot practicably be removed by other means, and to withhold financial payments from tortfeasors.

1.118  Miscellaneous. Part 5 deals with two other areas relevant to the liability of internet intermediaries. Chapter 17 addresses duties to retain and disclose communications data stored and processed by internet intermediaries for various public purposes.

1.119 Finally, chapter 18 provides an overview of the costs rules that apply to internet intermediaries and, in particular, their liability to pay the costs of implementing remedies ordered against them, and to pay the costs of proceedings in which such remedies are granted.

Notes
1

Cf William Shakespeare, The Tragedy of Coriolanus (1608) IV:vi, Menenius (‘you shall chance to whip your Information, / And beate the Messenger, who bids beware / Of what is to be dreaded’); Sophocles, Antigone (2003 ed, Reginald Gibbons and Charles Segal trans) II:310 (‘no one loves / A messenger who brings with him bad news’).

2

Alfred Tennyson, Aylmer’s Field (1793) lns 437–8.

3

William Dutton and Grant Blank, Cultures of the Internet: The Internet in Britain (2013) 26.

4

Alexa Internet Inc, ‘google.co.uk Site Overview’ (November 2015) <http://www.alexa.com/siteinfo/google.co.uk>.

5

Office for National Statistics, Internet Access—Households and Individuals (31 August 2011) 3–4.

6

Neil Williams, ‘2 Billion and Counting’ (Government Digital Service Blog, 20 November 2015) <http://gds.blog.gov.uk/2015/11/20/2-billion-and-counting/>.

7

Sara Radicati (ed), Email Statistics Report, 2012–2016 (April 2012) 3.

8

Facebook Inc, ‘Company Info: Stats’ (November 2015) <http://newsroom.fb.com/company-info/>.

9

Jeremy Chen, ‘Google Public DNS: 70 billion requests a day and counting’ (The Official Google Blog, 14 February 2012) <http://goo.gl/7heEfD>.

10

Cabinet Office, Cyber Security Strategy of the United Kingdom: Safety, Security and Resilience in Cyber Space (2009) 12; Paul Cornish et al, Cyber Security and the UK’s Critical National Infrastructure (September 2011) 2.

11

See, eg, European Parliament, MEMO/09/491, annex 1.

12

By one estimate, they transmit, store, and cache as much as 67 terabytes of data per second: TeleGeography, Global Bandwidth Research Service (2011) 1.

13

Maurice de Kunder, ‘The Size of the World Wide Web (The Internet)’ (18 February 2012) <http://www.worldwidewebsize.com/>.

14

Jesse Alpert and Nissan Hajaj, ‘We Knew the Web Was Big ...’ (The Official Google Blog, 25 July 2008) <http://googleblog.blogspot.com/2008/07/we-knew-web-was-big.html>.

15

Office for National Statistics, n 5, 3–5.

16

Frontier Economics, Contribution of the Digital Communications Sector to Economic Growth and Productivity in the UK (2011) 7, 36.

17

McKinsey Global Institute, Internet Matters: The Net’s Sweeping Impact on Growth, Jobs, and Prosperity (May 2011) 15–16.

18

See, eg, John Palfrey, ‘Four Phases of Internet Regulation’ (2010) 77 Social Research 981.

19

Debora Spar, Ruling the Waves: Cycles of Discovery, Chaos and Wealth from the Compass to the Internet (2001) 11–20.

20

See Graeme Dinwoodie, ‘The WIPO Copyright Treaty: A Transition to the Future of International Copyright Lawmaking’ (2007) 57 Case Western Reserve Law Review 751, 757–8 (it might be added that internet intermediaries themselves now represent a ‘fourth vector’ of balance in the post-ACTA calculus).

21

See Communications Decency Act 1996 (US) 47 USC § 230 (but note that this provision does not limit or expand any law pertaining to intellectual property: § 230(e)(2)).

22

See, eg, Cubby Inc v CompuServe Inc, 776 F Supp 135 (SDNY, 1991); Blumenthal v Drudge, 992 F Supp 44 (DDC, 1998); Zeran v America Online Inc, 129 F 3d 327 (4th Cir, 1997). See also Religious Technology Center v Netcom On-Line Communication Services, 907 F Supp 1361 (ND Cal, 1995) (copyright).

23

See, eg, John Barlow, ‘A Declaration of the Independence of Cyberspace’ (8 February 1996) <http://projects.eff.org/~barlow/Declaration-Final.html>; cf Lawrence Lessig, ‘The Path of Cyberlaw’ (1996) 104 Yale Law Journal 1743, 1744.

24

See, eg, I Trotter Hardy, ‘The Proper Legal Regime for “Cyberspace”’ (1994) 55 University of Pittsburgh Law Review 993, 994–5; David Johnson and David Post, ‘Law and Borders—The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.

25

See, eg, William Blackstone, Commentaries on the Laws of England (9th ed, 1783, reprinted 1978) vol 1, 108; Alex Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1, 5–6.

26

See, eg, Frank Easterbrook, ‘Cyberspace and the Law of the Horse’ [1996] University of Chicago Legal Forum 207. Cf Julie Cohen, ‘Cyberspace as/and Space’ (2007) 107 Columbia Law Review 210, 212–13.

27

See, eg, Lawrence Lessig, Code and Other Laws of Cyberspace (2nd ed, 2006) 122–5.

28

See Shetland Times v Willis [1997] SC 316 (copyright); Godfrey v Demon Internet Ltd [2001] QB 201 (defamation).

29

See, eg, Jane Ginsburg, ‘Putting Cars on the “Information Superhighway”: Authors, Exploiters, and Copyright in Cyberspace’ (1995) 95 Columbia Law Review 1466.

30

Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006) 29–32.

31

Cf OECD, The Economic and Social Impact of Electronic Commerce (1999) 24.

32

See Assaf Hamdani, ‘Who’s Liable for Cyberwrongs?’ (2001) 87 Cornell Law Review 901, 902; Michael Meyer, ‘Crimes of the “Net”’ (13 November 1994, Newsweek, New York).

33

Tim Wu, ‘When Code Isn’t Law’ (2003) 89 Virginia Law Review 679, 717.

34

Daniel Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (2007) 105.

35

See Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (2009) 46–7.

36

Daniel Defoe, ‘Miscellanea’ (3 December 1709) 104 Review VI 415.

37

Charles Dickens, The Life and Adventures of Martin Chuzzlewit (1844 ed) 200.

38

See A P Favre, De la Sophistication des Substances Médicamenteuses, et des Moyens de la Reconnaître (1812) x–xi.

39

See, eg, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Orin Kerr, ‘The Problem of Perspective in Internet Law’ (2003) 91 Georgetown Law Journal 357, 360–3.

40

See Catherine Stromdale, ‘Regulating Online Content: A Global View’ (2007) 13 Computer and Telecommunications Law Review 173, 174.

41

Eg, Tom Zeller, ‘Times Withholds Web Article in Britain’ (The New York Times, 29 August 2006) <http://www.nytimes.com/2006/08/29/business/media/29times.html>.

42

Eg, British Broadcasting Corporation, ‘Can I Use BBC iPlayer outside the UK?’ (BBC, 22 February 2012) <http://iplayerhelp.external.bbc.co.uk/tv/Mobile_abroad>.

43

See, eg, Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (Paper presented at the World Intellectual Property Organization, Geneva, 2005) 15–16.

44

YouTube LLC, ‘Statistics’ (1 October 2014) <https://www.youtube.com/yt/press/statistics.html>.

45

Doug Beaver, ‘10 Billion Photos’ (Facebook, 15 October 2008) <http://facebook.com/note.php?note_id=30695603919>.

46

Hamdani, n 32, 909–21; cf Doug Lichtman and Eric Posner, ‘Holding Internet Service Providers Accountable’ (2006) 14 Supreme Court Economic Review 221, 225–6.

47

Jane Strachan, ‘The Internet of Tomorrow: The New–Old Communications Tool of Control’ (2004) 26 European Intellectual Property Review 123, 124.

48

Lauren Patten, ‘From Safe Harbor to Choppy Waters: YouTube, the Digital Millennium Copyright Act, and a Much Needed Change of Course’ (2007) 10 Vanderbilt Journal of Entertainment and Technology Law 181, 208.

49

Davor Jančić, ‘The European Political Order and Internet Piracy: Accidental or Paradigmatic Constitution-Shaping?’ (2010) 6 European Constitutional Law Review 430, 438.

50

Alfred Yen, ‘Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace’ (2002) 17 Berkeley Technology Law Journal 1207, 1239–43.

51

See Benkler, n 30, 32.

52

See, eg, Ronald Mann and Seth Belzley, ‘The Promise of Internet Intermediary Liability’ (2005) 47 William and Mary Law Review 239, 274–5; Lichtman and Posner, n 46.

53

See Herbert Rose, A Handbook of Greek Mythology (1990) 174. See also Karl Kerényi, The Heroes of the Greeks (1978) 143–4 (describing the Hydra’s regenerative properties in Greek mythology).

54

See Communications Decency Act 1996 (US) 47 USC § 230 (tort); Digital Millennium Copyright Act 1998 (US) 17 USC § 512 (copyright); Lanham Act (US) s 32(2); 15 USC § 1114(2) (trade marks).

55

See, eg, Anne Cheung and Rolf Weber, ‘Internet Governance and the Responsibility of Internet Service Providers’ (2008) 26 Wisconsin International Law Journal 403, 411.

56

Mark Lemley and R Anthony Reese, ‘Reducing Digital Copyright Infringement Without Restricting Innovation’ (2004) 56 Stanford Law Review 1345, 1353.

57

See, eg, A & M Records v Napster Inc, 239 F 3d 1004, 1022 (9th Cir, 2001) (Napster); In re Aimster Copyright Litigation, 334 F 3d 643 (7th Cir, 2003) (Aimster); Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd, 545 US 913 (2005) (Grokster); Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 65 IPR 289 (KaZaA).

58

See Timothy Wu, ‘Copyright’s Communications Policy’ (2004) 103 Michigan Law Review 278.

59

See Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011) 47.

60

Andrew Gowers, Gowers Review of Intellectual Property (2006) 103.

61

See Hamdani, n 32; Douglas Lichtman and William Landes, ‘Indirect Liability for Copyright Infringement: An Economic Perspective’ (2003) 16 Harvard Journal of Law and Technology 395; Mann and Belzley, n 52; Lichtman and Posner, n 46.

62

See Ira Nathenson, ‘Civil Procedures for a World of Shared and User-Generated Content’ (2010) 48 University of Louisville Law Review 911; Greg Lastowka, ‘Google’s Law’ (2007) 73 Brooklyn Law Review 1327.

63

See Lee Kovarsky, ‘A Technological Theory of the Arms Race’ (2006) 81 Indiana Law Journal 918, 932–6.

64

Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd, 380 F 3d 1154, 1167 (9th Cir, 2004); overruled, 545 US 913 (2005).

65

See, eg, Trans-Pacific Partnership Agreement (Draft text of 4 October 2015) chs 13, 14, 18; Annemarie Bridy, ‘ACTA and the Specter of Graduated Response’ (2011) 26 American University International Law Review 559; Robert Burrell and Kimberlee Weatherall, ‘Exporting Controversy? Reactions to the Copyright Provisions of the US-Australia Free Trade Agreement: Lessons for US Trade Policy’ [2008] Journal of Law, Technology and Policy 259, 294–8.

66

European Parliament, Resolution on Cultural Industries in Europe (2007/2153(INI)).

67

Franceso Rizzuto, ‘European Union Telecommunications Law Reform and Combating Online Non-Commercial Infringements of Copyright: Seeing through the Legal Fog’ (2011) 17 Computer and Telecommunications Law Review 75, 92.

68

See, eg, Internet Rights and Principles Coalition, Charter of Human Rights and Principles for the Internet (2011); Stop Online Piracy Bill 2012 (US) (HR 3261).

69

Marc Aaron Melzer, ‘Copyright Enforcement in the Cloud’ (2011) 21 Fordham Intellectual Property, Media and Entertainment Law Journal 403, 447.

70

See, eg, Edward Lee, ‘Warming up to User-Generated Content’ [2008] University of Illinois Law Review 1459, 1546–7.

71

Jeremy de Beer and Christopher Clemmer, ‘Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries’ (2009) 49 Jurimetrics 375, 406.

72

See Lastowka, n 62, 1399.

73

See James Grimmelmann, ‘Saving Facebook’ (2009) 94 Iowa Law Review 1137, 1163.

74

See Solove, n 34, 155–60.

75

See Seth Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link’ (2006) 155 University of Pennsylvania Law Review 11, 16.

76

See Jonathan Zittrain, ‘Privacy 2.0’ [2008] The University of Chicago Legal Forum 65, 110, 115.

77

See Wu, n 58, 340–1, 344.

78

See Wu, n 33, 688–95.

79

Benkler, n 30, 392.

80

OBG Ltd v Allan [2008] 1 AC 1, 27 (Lord Hoffmann).

81

See chapter 5, paragraphs 5.07 and 5.10 for further discussion.

82

See chapters 6–11.

83

See chapters 17–18.

84

See chapter 5, section 1.2 for further discussion.

85

See, eg, Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229, [21] (Lord Toulson JSC), [68] (Lord Neuberger PSC); L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch); [2009] RPC 21, [344]–[346] (Arnold J).

86

See chapter 5, paragraph 5.12.

87

Defamation provides a good example of this: see chapter 8, paragraph 8.30.

88

See chapters 6–9.

89

See, eg, Senior Courts Act 1981 s 37(1).

90

See, eg, Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th ed, 2015) chs 7–9.

91

Case C-12/08 [2009] 3 CMLR 47, [59] (citations omitted) (‘Mono Car’).

92

Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135, 4159.

93

Pickstone v Freemans plc [1989] AC 66, 126B (Lord Oliver); approved by the Supreme Court in Assange v Sweden [2012] 2 WLR 1275, 1332.

94

[2002] 1 AC 45, 67, 87 (Lord Steyn).

95

Assange v Sweden, 1332.

96

Ghaidan v Godin-Mendoza [2004] 2 AC 557, [46] (Lord Nicholls) (‘Ghaidan’).

97

Ghaidan, [67] (Lord Millett).

98

Vodafone 2 v Revenue and Customs Commissioners [2010] Ch 77, [37]–[38] (Morritt C).

99

Ghaidan, [33] (Lord Nicholls), [110]–[113] (Lord Rodger).

100

Joined Cases C-397/01 to C-403/01, EU:C:2004:584 [2004] ECR I-8878, [115].

101

Fleming v Her Majesty’s Revenue and Customs [2008] UKHL 2, [24] (Lord Walker). See also Revenue and Customs Commissioners v Total Technology (Engineering) Ltd [2012] UKUT 418 (TCC), [47] (Warren J).

102

Murphy v Media Protection Services Ltd [2008] FSR 33, [63]–[64] (Burnton LJ).

103

Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) (‘European Convention’).

104

First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262 (entered into force 18 May 1954) (‘First Protocol’).

105

Human Rights Act 1998 (c 42) s 2(1)(a) (‘1998 Act’).

106

[2010] OJ C 83/391 (‘Charter’).

107

Charter art 51(1).

108

Charter art 52(1).

109

See generally Attorney General v Blake [2001] 1 AC 268, 278–81 (Lord Nicholls).

110

See generally Andrew Burrows, Remedies for Torts and Breach of Contract (3rd ed, 2004); Harvey McGregor, McGregor on Damages (19th ed, 2014).

111

See John v MGN Ltd [1997] QB 586, 608–9 (Sir Thomas Bingham MR) (defamation); Copyright Act ss 96(1), 97–100, 103, 184(2), 191I (copyright infringement).

112

See Jennifer Arlen and Reinier Kraakman, ‘Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes’ (1997) 72 New York University Law Review 687; Gary Becker, ‘Crime and Punishment: An Economic Approach’ (1968) 76 Journal of Political Economy 169, 178–80, 184.

113

See, eg, DesignTechnica; Emmens v Pottle (1885) QBD 354. See chapter 8, sections 2.2(b), 3.2(c).

114

See, eg, E-Commerce Directive arts 13(1)(e), 14(1)(b).

115

See chapter 5, section 3.

116

Lichtman and Posner, n 46, 226.

117

E-Commerce Directive recital (45).

118

Information Society Directive recital (59), art 8(3); Enforcement Directive recital (23), arts 9(1)(a), 11.

119

See, eg, E-Commerce Directive recital (45).

120

John Naughton, ‘WikiLeaks Row: Why Amazon’s Desertion has Ominous Implications for Democracy’ (The Guardian, 11 December 2010) <http://guardian.co.uk/technology/2010/dec/11/wikileaks-amazon-denial-democracy-lieberman>.

121

See Digital Economy Act 2010 (UK); Loi n° 2009-669 of 12 June 2009, Loi Favorisant la Diffusion et la Protection de la Création sur Internet (FR); Communications Alliance Ltd, A Scheme to Address Online Copyright Infringement (2011) 5–8; Copyright (Infringing File Sharing) Amendment Act 2011 (NZ); Law No 432, Copyright Act 1957 (KR) art 133-2(2); Center for Copyright Information, ‘What is a Copyright Alert?’ (26 February 2013) <http://www.copyrightinformation.org/the-copyright-alert-system/what-is-a-copyright-alert/>.

122

See Google Spain SL v Agencia Española de Protección de Datos, Case C-131/12, EU:C:2014:317 [2014] 3 WLR 659 (‘Google Spain’). See Chapter 10, section 3.4.

123

Department of Culture, Media and Sport, Next Steps for Implementation of the Digital Economy Act (2011) 7.

124

See James Grimmelmann, ‘Some Skepticism about Search Neutrality’ in Berin Szoka and Adam Marcus (eds), The Next Digital Decade: Essays on the Future of the Internet (2010) 435, 447. Cf Eric Goldman, ‘Search Engine Bias and the Demise of Search Engine Utopianism’ in ibid 461, 473.

125

See, eg, DomainTools LLC, ‘Recent Nameserver Activity: seizedservers.com’ (DailyChanges, 5 May 2012) <http://www.dailychanges.com/seizedservers.com/>.

126

See, in another context, Unspam Technologies Inc, ‘About Project Honey Pot’ (2012) <http://projecthoneypot.org/about_us.php>.

127

See Dan Goodin, ‘Unprecedented Domain Seizure Shutters 84,000 Sites’ (The Register, 18 February 2011) <http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/>; Kevin Murphy, ‘ICE Domain Seizures Enter Second Phase’ (Domain Incite, 20 April 2011) <http://domainincite.com/ice-domain-seizures-enter-second-phase/>.

128

See Ben Sisario, ‘Music Web Sites Dispute Legality of Their Closing’ (The New York Times, 19 December 2010) <http://www.nytimes.com/2010/12/20/business/media/20music.html>.

129

Margaret Grazzini, ‘Four Rounds of ICE Domain Name Seizures and Related Controversies and Opposition’ (Berkeley Technology Law Journal Bolt, 2011) <http://btlj.org/?p=917>.

130

See Matthew Broersma, ‘Clinton Encourages Serbia Net Access’ (ZDNet, 14 May 1999) <http://www.zdnet.com/news/clinton-encourages-serbia-net-access/102312>.

131

See, eg, The Economist Newspaper Ltd, ‘Reaching for the Kill Switch’ (The Economist, 10 February 2011) <http://www.economist.com/node/18112043>.

132

See, eg, BBC, ‘Severed Cables Disrupt Internet’ (31 January 2008) <http://news.bbc.co.uk/1/hi/technology/7218008.stm>.

133

See, eg, Hansard, ‘Public Disorder’, House of Commons (11 August 2011, Mr David Cameron MP) col 1053.

134

See, eg, Andrew Blum, ‘Tunisia, Egypt, Miami: The Importance of Internet Choke Points’ (The Atlantic, 28 January 2011) <http://theatlantic.com/technology/archive/2011/01/tunisia-egypt-miami-the-importance-of-internet-choke-points/70415/>.

135

Jonathan Zittrain, The Future of the Internet—And How to Stop It (2008) 54, 166.

136

House of Lords, Science and Technology Committee, Personal Internet Security—Volume I: Report (2007) 30–2.

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