The European Union is conducting a consultation on the responsibility of online platforms. Here is their definition of what constitutes a platform.
“Online platform” refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups.
So typically these are big web sites that lots of people use to connect, communicate or transact with each other.
The definition continues
Certain platforms also qualify as internet intermediaries. Examples include search engines, specialised search tools (e.g. Google Shopping, Kelkoo, Twenga, Google Local, TripAdvisor, Yelp,), location-based business directories or some maps (e.g. Google or Bing Maps), news aggregators (e.g. Google News), online market places (e.g. Amazon, eBay, Allegro, Booking.com), audio-visual and music platforms (e.g. Deezer, Spotify, Netflix, Canal play, Apple TV), video sharing platforms (e.g. YouTube, Dailymotion), payment systems (e.g. PayPal, Apple Pay), social networks (e.g. Facebook, Linkedin, Twitter, Tuenti), app stores (e.g. Apple App Store, Google Play) or collaborative economy platforms (e.g. AirBnB, Uber, Taskrabbit, Bla-bla car).
Internet access providers fall outside the scope of this definition.
The consultation closes on 6th January. This is an extremely important opportunity to influence a key area of policy. I hope the powers that be seize the moment. Here’s what I think about some of what I believe are the major issues.
- The eCommerce Directive established the notion of “mere conduit” status. As a result there can be no liability for any illegal or unlawful content on the platform unless and until those responsible for its management have actual knowledge of such content.
- Alternatively, on being given notice of apparently unlawful or illegal content liability can only arise if those responsible fail to act expeditiously to remove it.
- That principle should remain undisturbed.
- It would be unjust to make a company liable for something it knew nothing about or for liability to arise the instant the company was informed.
- That said it would be good if there could be greater clarity about what constitutes “actual knowledge”. A better definition of what “expeditiously” means and of how “notice” is served or deemed to have been served would also come in handy. These sorts of issues have already been addressed by the hotlines that deal with child abuse images so we could draw on their experience.
- The whole idea then would be to ensure the courts in Member States always followed common definitions.
- But the current incentive for platforms to do nothing should be banished.
- This incentive exists because, on a narrow interpretation of the eCommerce Directive if a company takes any steps to inspect content on its site, even if solely to try to ensure compliance with its own terms and conditions, it runs the risk of being deemed to have become the publisher of everything on the site and therefore to have “actual knowledge” of it.
- This remains the case even if, for whatever reason, when inspecting the site the owner missed some offending content.
- Some companies choose to ignore the risk of attracting liability. They constantly patrol or monitor activity on their platform and deal with what they consider to be non-compliant content. Other companies see the Directive as an alibi for inaction.
- Thus, in future, it should be made clear that any action taken by a company to police their platform solely to enforce compliance with their terms and conditions (one assumes all Ts&Cs forbid unlawful and illegal activity) can never give rise to liability.
- Actual knowledge must remain the anchor.
- I don’t think I would be averse to excluding the potential for liability to arise even where through negligence the company failed to discover unlawful or illegal matter that was present even though they were ostensibly deliberately looking for it.
- In many circumstances companies in the physical world have obligations to take steps to protect their customers or the wider public, for example under health and safety legislation and in the online space data privacy laws now impose minimum standards.
- A duty of care should be created for online platforms
- Thus, where tools are available which help reduce the level of illegal or unlawful behaviour on a platform firms should be under an obligation to deploy them.
- To put that slightly differently, no one should be free to establish or maintain an online presence in a way that puts other people’s businesses or individuals at risk, particularly if there are reasonable and proportionate steps they could take to mitigate or eliminate the risk of that happening.
- I acknowledge that this amounts to an amendment to the idea of intermediary liability but the core principle remains intact.
- In the early days of cyberspace there might have been understandable reluctance to adopt an idea of this kind but we now know a lot more about how the internet is working and what adverse impacts it is having across a wide spectrum of activity. Much of that downside is avoidable or at any rate can be reduced.