Paper: States Need To Be Cautious With Internet Intermediary Liability

By Maricel Estavillo for Intellectual Property Watch

A new paper from a Yale Law lecturer has outlined some general principles that governments must consider when imposing liability for internet intermediaries amid the lack of an international law covering online third-party liability.

Titled “Positive Proposals for Treatment of Online Intermediaries,” the paper was written by Margot Kaminski, the executive director of the Information Society Project at Yale Law School.

In her paper, Kaminski said governments should be guided by the following 10 general principles:

1. Be clear that provision of the safe harbors does not, in itself, establish intermediary liability;
2. Be clear about not establishing a duty to monitor user activity;
3. Be careful in the expansiveness of definition of infringement;
4. Be extremely cautious in implementing statutory damages;
5. Avoid establishing criminal liability for third parties;
6. Do not require intermediaries to terminate user internet accounts in response to copyright infringement claims, in the absence of court oversight;
7. Be sure to establish due process for users;
8. Give users the procedural ability to protest/sanction bad behaviour;
9. Leave flexibility for countries to experiment with broader user protections; and
10. Include limitations and exceptions to the liability rules, such as fair use.

“Although they are interrelated, most can be adopted independently of one another,” Kaminski wrote.

At present, governments have several options in treating online intermediaries amid the lack of a general rule in handling internet intermediary liability. While most countries do not have yet clear-cut policy concerning internet intermediaries, some governments such as the United States and the European Union member states have begun to address online third-party liability.

Some of the options that governments can adopt include making internet intermediaries criminally liable for user behaviour; make them civilly liable to other private parties for monetary damages; require them to monitor user behaviour; implement a notice-and-take down regime; and require them to cut off a user’s internet access.

Both the US and the EU have established a system of notice-and-takedown for internet intermediary liability. In the United States, the liability falls under civil law while the EU lacks a union-wide criminal intermediary liability as there is no criminalization of copyright infringement in the region.

In her paper, Kaminski has also expressed concern about the establishment a single regime for internet intermediaries, saying that doing so will “freeze experimentation” on the internet.

“We should be cautious in rushing to establish international intermediary liability, given that diversity in the short-run may result in a better system down the line. However, if the question of standardizing intermediary liability laws it brought to the negotiating table, the above considerations should be taken into account,” Kaminski said.