'Notice-based remedies for illegality': Hugh Tomlinson - CIPIL Annual Spring Conference 2018

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Hugh Tomlinson (Matrix Chambers). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference