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Intermediaries’ liability for hate speech                                    Giovanni Sartor                      EUI - Eu...
The user-generated internetInternet users write the web, by inputting materials in various containers:     web sites (web ...
Making the provider liableShould providers be liable (for torts and/or crimes: copyright, libel,defamation, hate crimes, c...
The basic legal disciplineHost providers are immune from civil and criminal responsibility for illegaluser-generate conten...
Should the provider be responsible? YesSince, at least with regard to civil liability     the provider is profiting from ac...
Should the provider be responsible? NoSince,     the provider has not created the content     making the provider liable w...
First model. Notice and take down: DCMA 512Immunity for hosting- No liability for the provider that complies with noticean...
Second model. Absolute immunity: CDA, section 230Full immunity for hosting:     providers are not responsible for hosting ...
Third model: immunity when not knowing. EU e-commercedirectiveProvider not liable for hosting illegal content if:     has ...
Problem. What is knowledge of illegality?Knowledge of the illegality of hosted material x involves 2 aspects:  1   factual...
Fourth model: The administrative modelA public authority gives presumptive indications on what to take down:     law enfor...
The 2010 draft Council recommendation for Public-PrivatePartnership to Counter the Dissemination of Illegal ContentCombina...
Legality-illegality in the recommendationIPSs should categorise materials they are notified about into there classes:     C...
Conclusions     Providers cannot and should not have the obligation to prevent on-line     hate speech (no preventive filte...
This is the end!                            Thanks for your attention!                              giovanni.sartor@eui.eu...
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Intermediaries’ liability for hate speech

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http://cmpf.eui.eu/events/combating-hate-speech.aspx

Giovanni Sartor
EUI - European University Institute of Florence
CIRSFID - Faculty of law, University of Bologna
March 26, 2012

Published in: Education, Technology, Spiritual
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Transcript of "Intermediaries’ liability for hate speech"

  1. 1. Intermediaries’ liability for hate speech Giovanni Sartor EUI - European University Institute of Florence CIRSFID - Faculty of law, University of Bologna March 26, 2012G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 1 / 15
  2. 2. The user-generated internetInternet users write the web, by inputting materials in various containers: web sites (web pages) blogs on-line repositories of texts (scribd), photos (flickr), movies (youTube), music, etc. social network on line forums, comments to other people’s blogs, etc. G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 2 / 15
  3. 3. Making the provider liableShould providers be liable (for torts and/or crimes: copyright, libel,defamation, hate crimes, child pornography, etc.) when: hosting material such that its posting is illegal (to the detriment of privacy, copyright, equality-dignity, etc.) taking down material such that its posting is legal (to the detriment of freedom of speech, political or economic freedoms, etc.)Problem: should there be immunity when uploading/keeping illegalmaterial; and/or taking down legal material? G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 3 / 15
  4. 4. The basic legal disciplineHost providers are immune from civil and criminal responsibility for illegaluser-generate content: in the US according to two instrument: the DMCA (digital millennium copyright act), which provides immunity from copyright violations the CDA (communications decency act) which provides broader immunity from other kinds of illegal content in Europe according to the E-Commerce Directive, which addresses all kinds of illegal content G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 4 / 15
  5. 5. Should the provider be responsible? YesSince, at least with regard to civil liability the provider is profiting from access to the hosted information (fairness) the provider is identifiable and has the resources for covering compensation (compensation, risk sharing) the provider can and should be incentivised to prevent damage by removing or filtering illegal information (prevention/efficiency)Current immunities should be eliminated. They are subventions toproviders, which are no longer needed now that (some) providers enjoyhuge economic success G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 5 / 15
  6. 6. Should the provider be responsible? NoSince, the provider has not created the content making the provider liable will impose costs on the provider and put at risk the current business model (free access) the provider will likely exceed in censorship: if it were considered to be liable it will remove all content having even a small chance of being a source of liability (freedom of expression)Immunities should be preserved and strengthened. The provider only has asmall benefit from the presence of particular materials on its platform, amuch larger benefit goes to the uploader and to society: incentive to takedown outweighs incentive to preserve even when social interest requirespreserving. G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 6 / 15
  7. 7. First model. Notice and take down: DCMA 512Immunity for hosting- No liability for the provider that complies with noticeand take down. The procedure: right holder sends notice of infringing material to the ISP’s agent provider takes down and informs customer if customer sends counter-notice, then provider informs right-holder if right-holder does not bring lawsuit, provider puts back materialImmunity for removing. Provider immune if content: claimed to be infringing appearing to be infringingPlusses: Passive role for provider, involvement of the uploderMinuses: Noticed provider tend to take down any material, to avoid liability(but uploader has chance to respond). G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 7 / 15
  8. 8. Second model. Absolute immunity: CDA, section 230Full immunity for hosting: providers are not responsible for hosting illegal material (except copyright) limited possibility of injunctions against providersImmunity for removing: immunity for screening objectionable content immunity for deleting such contentAre providers allowed to engage in censorship, to maintain civility? Yes if ingood faith. G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 8 / 15
  9. 9. Third model: immunity when not knowing. EU e-commercedirectiveProvider not liable for hosting illegal content if: has no actual knowledge of illegal material (and for damages has no knowledge of facts from which the illegal information is apparent), or upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the informationMember states may not impose general obligations on providers to monitor the information to actively to seek facts or circumstances indicating illegal activityNo clear indication of immunity for removing content G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 9 / 15
  10. 10. Problem. What is knowledge of illegality?Knowledge of the illegality of hosted material x involves 2 aspects: 1 factual knowledge: material x is hosted on the provider’s server 2 legal knowledge: material x is illegalSome issues What is knowledge of illegality: true belief (the knower views the contrary as impossible or absurd)? Should the provider actively engage in getting legal knowledge? What should it do with regard to the vast area of penumbra (or rather, the gradual dimming) between the light of legality and the darkness of illegality? G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 10 / 15
  11. 11. Fourth model: The administrative modelA public authority gives presumptive indications on what to take down: law enforcement authority (injunctions) independent authority (Hadopi-FR, Italian AGCOM, for copyright, data protection supervisors, etc.) public administrationsPlusses: filter on unreasonable requestsMinuses: difficulty in challenging the authority’s decision, possibly noinvolvement of uploader G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 11 / 15
  12. 12. The 2010 draft Council recommendation for Public-PrivatePartnership to Counter the Dissemination of Illegal ContentCombination of models 1, 3 and 4: binding legal request from law enforcement authority → obligation to take down notification from citizen → obligation to take down if content is clearly illegal notification from law enforcement authorities or authorised complaint hotline → obligation to take down unless content is considered to be legal, in this case notify authorityIssues: no right of the up loaders to counterclaim (they are excluded from the process) no clarity on immunity for taking down legal material (providers can free themselves of any responsibility through contracts with users) incentive to censorship (it is always the safer choice) G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 12 / 15
  13. 13. Legality-illegality in the recommendationIPSs should categorise materials they are notified about into there classes: Certainly legal →Obligation to take it down if binding request by authority, obligation to take down or permissible to take down if notified by citizens or authorised complain lines Possibly legal and possibly illegal → Obligation to take it down if binding request by authority or authorised complain lines. Permissible if notified by citizens. Certainly illegal → Obligation to take it down whenever notifiedHow to check whether content falls within what category? G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 13 / 15
  14. 14. Conclusions Providers cannot and should not have the obligation to prevent on-line hate speech (no preventive filter on speech). A good thing, possibly: hate comes to the light, and society can express its judgment on it and take appropriate decisions. Right to respond for victims? Providers may be compelled to take down hate materials, but respecting the adversarial principle (unless material is anonymous), possibly on the basis of a presumptive authoritative assessment, but judges should have the last word. Providers should not be obliged to assess the legality of materials, but they should be permitted to take down in good faith inappropriate materials, depending on the kind of platform (considering how easily users can avoid exposure). Uploaders should be given a role and enabled to express their opinion. G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 14 / 15
  15. 15. This is the end! Thanks for your attention! giovanni.sartor@eui.eu G. Sartor (EUI-CIRSFID) Intermediaries’ liability for hate speech 15 / 15
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