Private Law Theory

ABSTRACT
Platform regulation models are changing. For many years, intermediary liability laws were stuck in the binary of leave-up or takedown models. There has been a shift to what can be described as risk management, duty of care or due diligence models, such as the European Union’s Digital Services Act, the United Kingdom’s Online Safety Bill and explored in Canada as a duty to act responsibly. Under these frameworks, platform services are treated as issues of product safety, and platform duties are to manage the systemic risks of harm of their services. This paper starts from the position that, at least conceptually, the due diligence model is a welcome evolution in platform regulation. However, the product safety analogy only takes us so far when fundamental rights are at stake. This paper examines four priority issues for law and policy makers, including the constitutional implications of such a model, regulation of lawful but awful expression, the overlap between due diligence and intermediary liability laws, and the challenge in identifying the standard of care.

Laidlaw, Emily, The Diligent Online Platform (February 22, 2024). Forthcoming in Heidi Tworek and Taylor Owen (eds), Platform Governance in Canada (University of Toronto Press).