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  • 1. Lilian Edwards Professor of Internet Law University of Sheffield OECD Workshop IGF September 2010
  • 2.
    • The policy issues before 2000
    • Uncertainty as to liability for emergent ISP sector from 91/96 on
    • “ Cleaning up” the Internet seen as vital both for
    • public interests – kids, industry, etc - and consumer confidence in ecommerce and Internet
    • ISPs are the natural gatekeepers to the Internet
    • BUT
    • Lack of effective practical control – volume of material
    • Lack of legal control (privacy?)
    • Inequity - “shooting the messenger”
    • Consequences of unlimited liability – effect on ISP industry?
    • See early US Prodigy/Compuserve debate – publishers, distributors or common carriers? Some kind of immunity sought.
  • 3.
    • Two global model laws emerged
    • EC Directive on Electronic Commerce 2002
    • “ Horizontal effect” - exempts ISSP from liability for all types of content, criminal or civil ;applies to Information Society Service providers (ISSPs)
    • Cf US Digital Millennium Copyright Act
    • Copyright only; complemented by CDA s 230 (c) which gave total immunity from publication torts for service providers
    • Both divide liability up by functions - Mere conduit; Caching; Hosting
    • Limited liability “notice and take down” paradigm for hosted content became norm
  • 4.
    • As in pre-2000 world, enrolling ISPs to achieve policy goals now seen as increasingly vital
      • Copyright and downloading – moves to enrol ISPs in notice & disconnection; filtering; and DPI/monitoring
      • Child pornography and other unwanted material (terror, gambling, hate speech) – ISPs capable of stopping it by filtering , blacklisting?
      • Malware – enrolling ISPs to identify, isolate & disinfect bot subscriber computers?
      • In first two cases, state and commercial interests want prior filtering, not just post factum notice and takedown - harder for ISPs/hosts, and more dangerous for human rights/lack of transparency/scope creep
  • 5.
    • “ Shooting the messenger” narrative no longer seen as true – some hosts seen as culpable or complicit in wrongdoing for profit, esp in web 2.0 world
      • Eg US Viacom v YouTube litigation – though YT won
      • Eg eBay as site for selling counterfeit goods – cases vary US/EU/UK as to whether “guilty”
    • ISP and e-commerce industry no longer seen as needing special protections to thrive?
    • Filtering is more, tho not very, practical
    • But what of human rights eg privacy from monitoring, freedom from censorship?
  • 6.
    • Do we still need special immunities for online intermediaries?
    • Is limited liability/NTD still sustainable?
    • If not what rules should govern when/how filtering can be mandated?
    • Do “one size fits all” regimes like ECD still have a place or do we need separate rules for copyright, porn, gambling etc?
    • Are new rules needed for “new” intermediaries eg search engines, SNSs, e-auction sites?
    • What human rights scrutiny can be applied to liability rules? Are international guidelines needed?
  • 7.
    • 1. Rules of liability on intermediaries for libel/(c) clearly have chilling effect on speech – NTD and kneejerk take down
    • 2. Graduated response policies for (c) go further, restricting basic right to access to Net on allegation, and possibly legal speech
    • Due process often invalidated by both 1 & 2
    • 3. Rules mandating intermediaries to block adult or unwelcome content for child safety/public interest clearly invite scope creep & non transparent restrictions on speech
    • 4. 2 and 3 both likely to involve monitoring obligations via DPI etc => breaches of privacy as well.
    • 5. Enrolling of intermediaries to police malware may also lead to p rivacy violations.