Comparative Study Of National Approaches To Internet Intermediary Liability

The increasing influence and role of internet intermediaries over the past decade has led to a debate regarding their liability in relation to online infringement of copyright and related rights. A recent study analyses legal approaches adopted across both common law and civil law countries in order to pinpoint potential worldwide trends in these liability doctrines.

At a 30 April side event to the WIPO Standing Committee on Copyright and Related Rights (SCCR), entitled “Internet Intermediaries and Copyright: Presentation of Paper Summarizing National Approaches,” authors presented the paper “Comparative Analysis On National Approaches to the Liability of Internet Intermediaries for Infringement of Copyright and Related Rights.”

The 27th session of the SCCR took place from 28 April to 2 May.

The comparative study was conducted in 30 different jurisdictions by professors Daniel Seng at the National University of Singapore, and Ignacio Garrote Fernández-Díez at the Universidad Autónoma de Madrid.

In this survey, the term “internet intermediary” has been defined in a broad sense, including internet service providers (ISPs) as contained in the European Union Directive on Electronic Commerce (DEC) and the US Digital Millennium Copyright Act (DMCA), electronic platforms, social networks, “link-listing websites”, and internet search engines.

The first part examines the approaches taken in the jurisdictions reviewed under copyright, civil and criminal liability laws. The second part looks at regimes of exemptions from liability for intermediaries.

From a common law perspective, the indirect liability of internet intermediaries is fairly founded on the concept of “authorizing infringement.” Although different formulations have developed, such as in United Kingdom, Australia, Canada, New Zealand and Singapore, it is always based on “the knowledge of the intermediary of the infringing activity and its right and ability to control the person who committed the infringing activity and prevent it,” said the study.

By contrast, in the US common law, three different approaches exist regarding the issue: vicarious liability, contributory liability and “inducing infringement.” The latter is a new theory established from recent case law that concerns circumstances where a defendant distributes a device or service with the object of promoting its use to infringe copyright,the study explained. However, it is still imprecise how this judicial notion will evolve.

Despite a general acceptance of broad indirect liability, common law courts remain reluctant to apply liability to intermediaries “for any activity or service, which could enable the infringement to be committed,” the study said.

From a civil law perspective, indirect liability is drawn from the general rules of non-contractual liability in the jus commune, said Garrote.

The majority of the jurisdictions favour the subjective theory of liability, “which attributes liability to an intermediary who induces or contributes to the infringement of copyright committed by another person by a finding of indiscriminate – joint or several – liability between the user as the principal offender and the intermediary as the accessory,” said the study. However, in each case this causal connection must be ascertained, leading to some legal uncertainty.

With regard to criminal liability, considerable difficulties exist in terms of proof, making the general doctrines of complicity, aiding and abetting or co-responsibility hard to enforce by courts.

When it comes to the liability exemptions, there are commonly two different models grounded on either the DMCA or the DEC. But both are premised on the idea that there is no general obligation for the intermediary to monitor or investigate illegal content transmitted or hosted, explained Garrote.

Systems following the DMCA generally adopt similar safe harbour defences to the four defences found in Section 512 of the DMCA, such as in Australia, China, Malaysia and Singapore. These include exemptions from claim for damages or monetary relief in cases where intermediaries provide transmission/access services, caching services, hosting services, and referral services. However, their implementation varies among countries.

More and more free trade agreements between the US and various jurisdictions include these safe harbours, pushing other states to use these methods in their own countries, highlighted Seng.

The second model, also known as the “horizontal approach” taken by the DEC, establishes exemptions from civil actions for damage and criminal sanctions for infringement of the right holder’s copyright interests, as well as of any intellectual or non-intellectual property rights. Pursuant to articles 12 to 14 of the DEC, intermediaries providing data transmission/access, proxy caching and information hosting services can be exempted from liability.

Regarding the absence of a general obligation for an intermediary to monitor or investigate illegal content transmitted or hosted pursuant to Article 15 of the DEC, there exists some small variation among member states. For instance, in Belgian law, this absence of a general duty to monitor does not prevent a temporary order to monitor by judicial authority for specific cases, said the study.

Although EU case law often allows an exemption for the information hosting service, a case-by-case analysis is conducted each time to ascertain that the intermediary is neutral and passive as required by Article 14 of the DEC. In this regard, where the line is drawn with, for instance, Facebook, Google+ or even search engines, can be sometimes be tricky for jurisdictions.

While the DEC does not refer to information location services such as search engines, some EU jurisdictions, including Spain, Germany or France, have extended their hosting safe harbour defence where these intermediaries seem to play a passive, technical or automatic role.

The study also summarises the necessary conditions across the different legal models for an intermediary to benefit from these exemptions.

In the case of transmission/access or system caching services, whether in the DMCA or the DEC, the intermediary must satisfy conditions of a technical nature.

However, when intermediaries provide hosting or information location services, three non-technical conditions must be considered, namely the intermediary’s knowledge of the infringement, possible financial benefit from such activity, and its response to a takedown notice of the claimed infringement, explained the study.

In the DMCA as well as in the DEC, the intermediary normally cannot have actual knowledge of the infringing activity, unless it acts expeditiously to remove or disable access to it. But this preclusion received different interpretations among countries.

Under the DMCA, the existence of a direct financial benefit for intermediary prevents the application of any exemption, whereas in the EU there is no consensus on this point.

The DMCA also requires as a third condition that in case of takedown notice – i.e., notification of claimed infringement issued by a copyright owner or his agent intermediary – intermediaries must expeditiously remove or disable access to that material, the study said.

Regrettably, recent empirical research has demonstrated that an increasing number of takedown requests issued are erroneous, thus highlighting the need to improve the quality of the takedown process, explained Seng.

Conversely, in the EU, due to the lack of procedures for issuing takedown notices in the DEC, questions as to when and how intermediaries have knowledge of the alleged act, and then how much time intermediaries have to respond expeditiously to the notice, are the bone of contention among jurisdictions, said the study.

To conclude, both the common and civil law systems seem to have difficulties in dealing with the explosion of diverse ISPs on the Web; they are even described by Garrote and Seng “out of date.” In fact, their rigid classification for different types of intermediaries has led to considerable uncertainty as to the application of safe harbour defences in numerous cases.