ABSTRACT
The idea that mere conduits of information should generally not be held responsible for the information they carry appears sensible. Accordingly, Safe Harbors immunize intermediaries from liability arising out of content posted by its users. Yet practice suggests that governments often hold intermediaries responsible, if not liable, for such content. This article begins from the premise that, for law to keep its vitality and relevance, it should harmonize with global practice and public policy in a manner that gives deference to legal precedent. I propose a new doctrine which acts as a threshold question – a ‘portal’ – to the applicability of the Safe Harbors. The portal question first asks whether granting Safe Harbor protection would be ‘unconscionable’ under all circumstances. This question is buttressed by a second, discretionary question, which asks whether the content was ‘particularized’ to an individual. I suggest that particularized content carries more of a private character and weighs in favor of applying the Safe Harbors, while non-particularized content generally carries more of a public character and weighs against applying the Safe Harbors. This new doctrine gives courts an additional device to tackle the challenging and ever-evolving issues of the internet, such as where intermediaries deliberately turn a blind eye to content that corrupts community expectations of justice or where intermediaries adopt a technological architecture that inappropriately circumvents the law.
Lin, Patrick, The Portal to Intermediary Liability: Merging Secondary Liability with Equity and Private International Law (May 23, 2020). Wake Forest Journal of Business and Intellectual Property Law volume 20, no 3.
First posted 2020-11-05 15:04:26
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