Michal Lavi, ‘Taking Out of Context’

Once upon a time, people believed that the internet would be a free medium controlled by users from the bottom up. Instead, it created new gatekeepers that offer platforms for users to create their own content. These intermediaries are not mere middlemen, but also act as centers for disseminating information and they possess an essential role in directing the attention of users. They can promote or withhold ideas, organize the flow of information, and influence social dynamics as well as spread user-generated content. Intermediaries may link posts, spread them, emphasize specific items or add headlines to users’ content. They affect the manner in which ideas are interpreted, the credibility ascribed to them and can even influence democracy. The dissemination of user-generated content has many advantages, but may also cause harm to some users and third parties. The influence that intermediaries possess might aggravate this harm.

The liability intermediaries bear for spreading content may be explored in many ways, but this article focuses on one particular aspect: the dissemination of defamatory content. Online libel attracted a great deal of attention in courtrooms and regulations; yet it remains under-conceptualized. This article strives to fill in the gap. Drawing on network theory, psychology, marketing and information systems, it maps common strategies of content dissemination and explains how they influence the severity of harm. Subsequently, it examines case law and normative considerations that should be taken into account when deciding whether an intermediary is liable for disseminating users’ content.

The article proposes to observe liability through the prism of context. This framework allows the differentiation between intermediaries who disseminate content in ways that are consistent with its original context and intermediaries who take it out of context. By binding intermediaries’ liability with a breach of context, the article proposes a nuanced guideline for deciding the scope of their liability. It does so while taking into account basic principles of tort law, freedom of speech, fairness, efficiency and innovation promotion.

Lavi, Michal, Taking Out of Context (May 23, 2017). Harvard Journal of Law and Technology, volume 31, no 1, 2017.

First posted 2021-06-14 13:15:47

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