The (moral) responsibility of Internet intermediaries

Abstract

Traditional approaches to the liability of Internet intermediaries tend to recognize the responsibility of these for content they knowingly host. In the common law of defamation, as in general statutory provisions around the globe, the assumption so far has been that Internet gatekeepers, once aware that they host content of illegal nature, must act expeditiously to take such content down. Empirical research has pointed to the potential of these approaches to chill lawful speech on the Internet. That is, while it is arguable that Internet intermediaries may act diligently in ascertaining the lawful or unlawful nature of content before deciding whether to take it down, the reality shows that high transaction costs motivate unreflective behavior by intermediaries. In other words, more often than not Internet intermediaries will simply take content down upon receipt of notice by a victim, which raises concerns regarding freedom of expression. Recent statutory developments in UK defamation law depart from established jurisprudence to suggest that, as long as authors of defamatory content can be identified by the victim, the liability of intermediaries should be excluded. In Brazil, a ‘Bill of Rights for the Internet’ has just been passed by parliament establishing a virtually absolute regime of immunity for Internet intermediaries, even for content they knowingly host. Given the position Internet intermediaries occupy in the social dynamics of contemporary societies, these are developments that fundamentally alter the moral underpinnings of the world we live in. They cannot be taken lightly from a moral standpoint. This presentation will put forward a critical evaluation of such developments and propose an alternative solution – a middle ground between liability exclusion and full-blown liability for any decision of keeping content online. Liability ascription, I will argue, must be tied not simply to the resulting act (of takedown or not) but to the degree of engagement of an online service provider in the reasoning process that leads to that act. The grounds for so are twofold: on one hand, the moral impossibility of detaching justice considerations from practical reason in general; on the other, the moral responsibility of all members of a moral community towards the development of the body of institutions that we call the law.