Jusletter IT

We have been called the information society (Y. Masuda, D. Bell et al.). The innumerable activities concerning information (its creation, distribution, storage, use, destruction, etc.) have become the main characteristics of such a society. These activities are covered by the information and communication technologies (ICT) and are subject to regulation, if (absolutely) necessary. The convergence of the Internet, digital telephony and television, among others, falls within the scope of ICT.

Contemporary Internet is highly interactive. Various actors actively take part in wide range of on-line services, e.g. by uploading or hosting, and thus they might be subject to liability. The shape of legal responsibility impacts both use and development of ICT – it could incentive, constrain or discourage particular kinds of conduct. Many national and supranational authorities (e.g. the EU) and organizations (e.g. OECD) include ICT in their development policies.

Web 2.0 is the commonly used expression for the World Wide Web as a decentralized, interactive network where its users can collaborate with each other by e.g. uploading, sharing and changing website content. This is contrasted to the Web 1.0, i.e. the consolidated and merely passive browsing of information published on-line. The new «version» includes, inter alia, social portals, collaborative encyclopaedias and dictionaries, blogs, on-line marketplaces, search engines, on-line games, file sharing, etc. Web 2.0 has been used for business, entertainment, social and political purposes, among others. (Recently, a friend of mine described to me the so-called Twitter Revolution, i.e. anti-communist demonstrations in Moldova during spring 2009. Social networks have aggregated the protesters.)

This term, introduced in 2004 by Tim O’Reilly, although highly disputable, nowadays is widely exploited for commercial purposes. In fact, there is no particular difference in technology between «versions» 1.0 and 2.0. Since the Internet is of a constantly developing nature and so far there was not any radical change in its architecture (Lawrence Lessig would say: code), we should describe it as evolution, rather than any revolution. However, we get used to the IT jargon of the version numbers or issue years to mark the software progress. The Web 2.0 is just a combination of some recent innovations. It is a switch from the top down to the bottom up structure of the Internet. (This might be compared e.g. with the open-source software movement.) I understand this term simply as an expression for another step of development of the Internet, in which the users, their interrelation and content they generate are the focal points.

The most significant feature of the Web 2.0 (or whatever else to call it) is the permanent interaction between its users, sometimes in real time. Everyone is invited. The effects of such interaction, in any form, are immediately available on-line to others, either to limited groups (e.g. a social portal) or for unrestricted access (e.g. a blog). («Closed» means of communication e.g. e-mail or instant messengers are not of that nature.) This is possible due to the three characteristics of the contemporary Internet: quantity, speed and scope. Never before was there so much data that can be transferred so fast and can be accessed so broadly (in fact, worldwide) and so easily. Obviously, it could not have been possible before the access to the Internet became so universal and without adequate speed of data transfer.

In result, quot capita, tot sensus (Latin for «there are as many opinions as there are heads»). But it is not that 100% of users make their contributions. Some of them remain simply inactive browsers. It is justified to say that both «versions» of the Web co-exist.

For all these reasons, I guess, the Time’s Person of the Year 2006 has been «You» – an ordinary user-contributor to the World Wide Web. «We didn’t just watch, we also worked» (Lev Grossman). For the same reasons, Andrew Keen in his 2007 book «The Cult of the Amateur» has been seriously worried about the quantity and quality of the Web 2.0 content and its impact on our values, culture and economy.

The emergence and rapid development of Web 2.0 has significantly challenged the legal system, especially laws on industrial and intellectual property, privacy and defamation. In such an environment anybody can upload anything in whichever form (text, image, audio, video, etc.) and this content, within just a few seconds, is then easily accessible by anybody, worldwide. However, such uploaded content might sometimes be illegal or harmful. Thus the question of liability (civil, criminal or administrative) might arise.

In many contemporary legal regimes, it is not only the person who has posted such material (the user), but also the intermediary service provider (ISP) who might be held liable. Not going into details, an ISP is an entity that provides, either for remuneration or not, network access and/or different kinds of on-line services. The latter is of particular interest for this research, because such an ISP offers storage «space» for user-generated content (UGC) and is not involved ex ante in its publication. That is to say, such an ISP does not decide on which material is to be made available to the public before its upload. However, they might take down illicit material upon notification (see infra).

Both users (directly) and the ISP (indirectly) could be held liable for the infringement of the intellectual property rights (especially copyright and trademarks), defamation (libel and slander), trade in counterfeit items, illegal disclosure of personal data and spamming, among others. Moreover, the criminal responsibility for e.g. online obscene materials, violent content, identity theft, etc. (i.e. cybercrimes) might also be considered. So far, there is no simple answer to what happens if a machine generates and discloses any kind of illegal content.

In the most common pattern (DMCA or E-commerce Directive, seeinfra ) for copyright infringement, the ISP can be held liable for failure to suspend or remove (in a reasonable time) the illegal content upon obtaining a certain level of knowledge about its existence. Due to the extremely huge amount of information stored and transferredvia the network, there is no obligation to monitor the content transferred, cached or hosted (stored) by the ISP.

The «history» of the intermediaries’ liability is marked by two famous U.S. Supreme Court rulings. The Sony case (1984) provided a «safe haven» for producers of devices that are primarily used for legal purposes («the distribution of commercial products capable of substantial non infringing uses could not give rise to contributory liability for infringement.»)

In theGrokster case (2005) the Court ruled that «one who distributed a device with object of promoting its use to infringe copyright, [...] is liable for the resulting acts of infringement by third parties using the device, regardless of the device lawful uses.»

To ensure legal certainty, the U.S. Congress has passed the Communication Decency Act of 1996 (CDA) to clarify the on-line defamation liability regime. Section 230 provides that «no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. » The Act was followed by the Digital Millennium Copyright Act of 1998 (DMCA) to govern copyright infringements (only). Section 512 provides, under certain conditions, four «safe harbours» against copyright liability (mere conduit, caching, storage and information location tools) and introduces the detailed notice-and-take-down procedure. For patents, trademarks, etc. infringementvia the Internet there is no single regime in the U.S. For example, apart from direct liability, the doctrines of contributory infringement or vicarious liability might apply.

In the EU, the Directive 2000/31 on electronic commerce was enacted in 2000 (implemented by 2002) and covers all kinds of torts (Arts. 12-15). The European model is predominantly based on the DMCA, although the notification procedure is not described in details.

The ISP liability regime has been set up in the 1990s. Obviously, technology develops faster than law. The recent US judgement in Tiffany vs. eBay,¹ concerning on-line trade in counterfeit items, the French decision in Jean Yves Lafesse v. DailyMotion,² relating to the distinction between the hosting ISP and the editor, and the pending ECJ case of Louis Vuitton vs. Google,³ concerning the lawful use of trademarks in Internet search engines, prove that existing rules on ISP liability are outdated and inefficient. There is an urgent need to rethink the ISP liability regime.

How should we shape such a liability in «the Web 2.0 era»? Who is the «new» ISP, if any? What is the ratio for imposing liability on intermediaries? What means should regulate? Etc. Etc.

Liability is one of the central concepts of law. It could function e.g. as a way of compensation, but also as a governance measure. It has legal, political, economical and technological dimensions, among others. Therefore, the concept of ISP liability, a part of the Web 2.0 phenomenon, is a sensitive and complex matter.

The sound framework of the ISP liability is one of the crucial measures towards the safe, secure, and undisrupted use and development of the Internet. Observance of human rights (e.g. freedom of speech, access to the culture, privacy, etc.) and core values shared among the society must also be ensured. From the procedural point of view, a comprehensive, uniform and simple legal regime is economically and practically advantageous, while any over-regulation must be avoided. These features will eventually contribute to wider application of the Internet and to a higher level of trust and confidence therein.

Grossman L. Time’s Person of the Year: You, Time, 13 December (2006).
Keen A. The Cult of the Amateur: How Today's Internet is Killing Our Culture, Broadway Business: NY (2007).
Landes W.M. and Lichtman, D.G. Indirect Liability for Copyright Infringement: An Economic Perspective, Harvard Journal of Law and Technology, Vol. 16, No. 2 (2003).
McEvedy V. The DMCA and E-Commerce Directive, 24 E.I.P.R., 65–73 (2002).
O'Reilly T. What Is Web 2.0?, at http://oreilly.com/web2/archive/what-is-web-20.html (2005).
Reding, V. Digital Europe – Europe's Fast Track to Economic Recovery, the Ludwig Erhard Lecture, 9 July; SPEECH/09/336 (2009).
Riccio, G.M. The Clash of Business Models in Cyberspace, presentation at the 7th International Conference Cyberspace, 20–21 November, Brno, Czech Rep (2009).
Rylich J. Buzzword 2.0 – The (R)evolution of the Web, Masaryk University Journal of Law and Technology, No. 2/008 (2008).
Schruers M. The History and Economics of ISP Liability for Third Party Content, Virginia Law Review, Vol. 88, No. 1 (2002).

Dariusz Kloza, Master Student (LL.M.) in Law & Technology
Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT)
Warandelaan 2
5037 AB Tilburg, the Netherlands
d.kloza@uvt.nl; www.uvt.nl/tilt; http://letusblog.wordpress.com/