Intermediary liability

The concept of intermediary liability refers to situations in which an intermediary may attract liability for the actions of a third party in relation to their platform. There are also some specific legal protections that exist to ensure that intermediaries may not be held liable for certain third-party actions. For ORG's concerns, the most relevant intermediaries are most likely to be ISPs, internet platforms, and internet services.

Relevant Case Law

• Appleby v UK - Free Expression does not guarantee a right to be given a platform.
• Bunt v Tilley - ISPs cannot be held liable for defamatory comments as publishers.
• Delfi v Estonia - A site, as publisher of defamatory comments, can be held in equal liability to the author of defamatory comments where such a site exercises some degree of control over those comments. (i.e. A site that moderates user-authored comments can become liable for them as a publisher.)
• L’Oréal v eBay - Sites can be held liable for third-party content if they take an active role in processing it to promote it.

General Exceptions

e-Commerce Directive

Within the EU, online intermediaries are able to rely on exemptions from liability in certain situations. The e-Commerce Directive allows an intermediary to exempt themselves from liability if they are not responsible for content transmitted via their services because they are a "mere conduit" for the content, or if they are merely "caching" or "hosting" it.

Libel

In Libel cases, which are generally brought under the Defamation Act 1996, liability generally rests with the author of libelous comments.

It is the general position, as per the case of Bunt v Tilley, that internet service providers cannot be held liable for defamatory comments transmitted through their networks. As neither authors, editors, or publishers of comments, they are afforded the liability exemption found in s.1 Defamation Act 1996.

Another general liability exemption that might apply here, for ISPs and platforms, are the e-Commerce Directive exemptions for “caching”, “hosting” and “mere conduit”. It is worth noting that the “hosting” exemption only applies where a provider does not have “actual knowledge” that they are hosting unlawful content. The other two exemptions do not get disapplied upon “actual knowledge”.

One principle that comes from the European Court of Human Rights case of Delfi is that a site operator as a “publisher” can be held in equal liability to the author of defamatory comments in a scenario where a site exercises some control over the comments posted on the platform. This applies in a situation where defamatory comments are posted on a site which conducts active comment moderation. Rather than being able to claim they are an entirely passive intermediary, a site which conducts active moderation and leaves defamatory comments posted on their site accrues potential liability for those comments.

Patents

The main law surrounding patents in the UK can be found in the Patents Act 1977.

Once again, the general liability exemption that might apply here, for ISPs and platforms, are the e-Commerce Directive exemptions for “caching”, “hosting” and “mere conduit”. It is worth noting that the “hosting” exemption only applies where a provider does not have “actual knowledge” that they are hosting unlawful content. The other two exemptions do not get disapplied upon “actual knowledge”.

UK law also provides a statutory right of redress against unjustified or groundless threats to sue for patent or trade mark infringement. According to the Law Commission, “If a threat to sue for infringement is made where there has been no infringement, or the right is invalid, it is said to be groundless or unjustified. Any person aggrieved, that is whose commercial interests suffer because of the threat, may apply to court for a remedy. These are an injunction to stop the threats, a declaration that there has been no infringement and/or damages for loss caused by the threats.”

Trade Marks

A trade mark is a graphical sign used to distinguish one party’s goods or services from those sold by others. To protect their brand or image, the owner of a trade mark is granted the power to seek legal remedies if another party makes use of that mark in the course of trade. In England and Wales, trade marks are mostly governed by the Trade Marks Act 1994.

A person can protect their trade mark by registering it with the UK Intellectual Property Office (UKIPO), which makes legal remedies for infringement available under the Trade Marks Act 1994. If a trade mark is not registered, then some protections may still be available under the common law of ‘passing off’.

Where a person’s trade mark is infringed via an online platform - for instance, by a user of an online marketplace site offering counterfeit goods for sale - the trade mark owner may generally only take action against the party who is posting the content and not the platform itself. The operator of a service will generally be entitled to rely on the ‘hosting’ exemption of the e-Commerce Directive to indemnify themselves from liability.

As per the wording of the e-Commerce Directive, the service’s liability exemption for ‘hosting’ ceases to apply if they are presented with “actual knowledge” of trade mark infringement happening on their platform. When presented with this knowledge, a provider would have to take action to remove the infringing content.

A service operator also cannot rely on the ‘hosting’ exemption if their service does deal with the trade mark infringing content in a neutral manner. If the operator can be said to have taken active steps with the content that would give it knowledge, or control over, the data stored. This is confirmed by the cases of L’Oréal v eBay, and Google v Louis Vuitton, both of which involved the processing of online sales listings to allow a service provider to promote customer attention to those listings in particular.

"Hate Speech"

Differing definitions of “hate speech” lead to confusion with the Digital Charter specifically, as the Government has not advanced a particular definition which it intends to rely upon.

For example, the European Court of Human Rights defines hate speech as: “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility towards minorities, migrants and people of immigrant origin.”

Social media platforms often define their notions of hate speech in their terms of service. For example, YouTube limits hate speech to “content that promotes violence or hatred against individuals or groups based on certain attributes, such as: race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity.”

Hate speech and offensive speech offences can be found in the Public Order Act 1986, Section 127 of the Communications Act 2003, and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act.

As with the above sections, the e-Commerce Directive’s Article 15 exemptions on liability apply - shielding site operators and internet service providers from liability if hateful material is posted using their platforms or services.