The Intermediary Liability Conundrum : Are Safe Harbors Useful?

Whether online intermediaries should be held responsible for user-uploaded content is one of the earliest conundrums of Internet law. Since the 1990s, the prevailing model has been to exempt online intermediaries from liability for third-party infringements as long as they conform to certain conditions. Recently, calls to expand intermediary liability has intensified both in the U.S. and the EU. Adversaries of the safe harbor regulation claim that the current laws have gone too far and favor intermediaries unfairly. The aim of the thesis is to analyze the validity of the calls to abolish safe harbors. The intent is to do so by investigating how the safe harbors work, why they exist, how they will develop in the future, and what to consider if the procedures were to be changed. The methods chosen are doctrinal research and comparative analysis. The reason for using both methods is that it will provide a deeper understanding of why safe harbors exist and additional arguments for the analysis. I have chosen to compare the U.S. and the EU intermediary liability regimes because of the vast amount of information available, their close historical ties, and the relevance of respective markets. The question of whether intermediary liability safe harbors should exist or not boils down to which fundamental rights the legislators want to emphasize and protect. All of the involved parties have their own set of competing interests and any decision is going to favor someone. There are three ways to go about changing how intermediary liability works. The first option is to provide intermediaries complete insulation from liability, the second option is to introduce safe harbors that are conditional or to adjust existing conditions, and the third option is to introduce strict liability to intermediaries. The first two options already exist in the U.S. and are proven to work. The procedures are not flawless, but at least they conform to fundamental rights fairly well. Introducing strict liability to intermediaries would more than likely lead to ex-ante content blocking, thus violating freedom of expression to an unjustifiable extent