New Report and Advocacy Toolkit on Intermediary Liability

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today – a platform where diverse content and free expression thrive – would not exist.

What role should online intermediaries play in policing the content and conduct of their users? What if any legal responsibility should they bear when users post or transmit material that may be unlawful? These are familiar questions to advocates for Internet openness and crucial issues for Internet policy. Today, CDT is releasing an expanded and updated paper and additional resources that explore these complex issues.

The fight over SOPA and PIPA was one example. More recently, we’ve seen the arrest of a Google Brazil executive over political YouTube videos (this occurring alongside controversy over the Marco Civil draft legislation, which could update Brazil’s legal approach to Internet intermediaries). A French report discussing possible alternatives to its much-derided “Hadopi” graduated-response system for copyright enforcement includes among the options both search-engine delisting (à la SOPA) and the troubling concept of “notice-and-stay-down.” Add to this the debate over Google’s selectively blocking “Innocence of the Muslims” and the criminal conviction of a Thai webmaster earlier this year for hosting others’ speech and it’s clear that much of Internet policy centers on the proper role of – and the role of legal protections for – Internet intermediaries.

The paper is intended to help guide policymakers, companies, and advocates through this increasingly complex topic. The paper reiterates the strong case in favor of liability protections for intermediaries, pointing out the attendant benefits for free expression, access to information, and economic development. We have also added new analysis of the risks involved with placing direct gatekeeping or content-policing obligations on intermediaries. Lastly, drawing from our advocacy around SOPA/PIPA and Europe’s recent inquiry on notice-and-action systems, we have expanded the discussion of alternative approaches to addressing unlawful content online, including user-empowerment tools, educational efforts, and voluntary initiatives. While not without their own problems, if done carefully these options can make progress in difficult areas of Internet policy without compromising the openness that drives free expression and innovation online.

For other advocates, we have also posted a toolkit of advocacy materials alongside the longer paper. The toolkit includes short summary of the major points in the paper, as well as a short “talking points” memo and presentation slides. All are free to use and edit/extend as circumstances may require.

Additional CDT resources that may be of interest include:

Account Deactivation and Content Removal: Guiding Principles and Practices for Companies and Users (CDT & The Berkman Center)

Other “Shielding the Messengers” blog posts

CDT Comments on Notice-and-Action

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