Balkinization: Introducing ‘New Controversies in Intermediary Liability Law’ -- an Essay Collection

Introducing ‘New Controversies in Intermediary Liability Law’ -- an Essay Collection

Guest Blogger

Tiffany Li

What do we talk about when we talk about intermediary liability? Intellectual property laws likely come to mind first – the DMCA, Section 230, and so on. Fresh information ecosystem challenges like content moderation issues and the spread of “fake news” rise to the forefront as well. There are also growing concerns around privacy and cybersecurity issues, as well as the specter of overreaching tech platform governance.

Depending on whom you ask, all of the above may fall under the larger umbrella of issues related to “intermediary liability,” or only a number of them may be directly relevant. As the internet and intermediaries become more important in modern society, a growing number topics could qualify as related to the liability (or responsibility) of internet intermediaries. Indeed, it is time to recognize that the field of intermediary liability law has significantly grown since its arguable beginnings in a few discrete intellectual property laws. In other words, when we talk about intermediary liability, we must recognize how far and widespread the field has grown.

This essay collection, “New Controversies in Intermediary Liability Law,” explores the contemporary state of intermediary liability law. It features diverse perspectives on the most pressing and current intermediary liability issues, highlighting the different topic areas that matter most today. Annemarie Bridy writes on filters and the fate of safe harbors. Aleksandra Kuczerawy explores the uncertain future of Article 15 of the E-Commerce Directive. Jacob Rogers explains the problems with hyperlinking laws. Anupam Chander considers different models for a “Facebook Supreme Court.” Eric Goldman offers a pitch for preserving Section 230 to protect market entrants. Amélie Heldt delves into the role of Facebook in spreading and controlling misinformation related to E.U. elections. Martin Husovec questions the lack of online due process. Michael Karanicolas warns about the threat of privatized censorship through platforms. Daphne Keller provides a policy tool kit for crafting new intermediary liability laws. And finally, I conclude the collection with some remarks on future directions for intermediary liability law and legal scholarship.

We are honored to present this series of interesting and informative essays on Balkinization, with the gracious support of Professor Jack Balkin. We will also publish these essays as a publicly available collection on the Information Society Project website when we have concluded the series. In addition to highlighting the diversity of intermediary liability issues relevant today, we hope this essay collection will further the important discussions currently being had on how best to protect the open internet, promote access to information, and develop and maintain a healthy online environment.

This essay collection is a project of the Wikimedia/Yale Law School Initiative on Intermediaries and Information, which is funded in large part by a generous grant from the Wikimedia Foundation. We thank the Wikimedia Foundation and the Information Society Project for their support, as well as Rebecca Crootof and Jack Balkin for their substantial efforts in bringing this project to fruition, and of course, all our essay authors for their contributions to this collection.

Tiffany Li is a Resident Fellow at the Information Society Project, where she leads the Wikimedia/Yale Law School Initiative on Intermediaries and Information. You can reach her by e-mail at tiffany.li at yale.edu

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