Internet Intermediaries

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 309-338



 : Internet Intermediaries

A. INTRODUCTION: A SUBJECT OF SOME COMPLEXITY

Intermed iaries a re one of the pivot al and den ing feature s of the Inter net and

cyberlibel. “Every Internet communication, whatever its form, passes through

a number of intermediate computer systems as a series of IP d atagrams en

route from one computer to another.” e importance of their role and the

necessity for some regulation of i ntermediaries has resu lted in the passage of

leg islat ion t hroug hout t he worl d, as well a s a tor rent o f comm entar y, aca dem-

ic and otherwise, onli ne and oine about the liability, exemptions, classica-

tion, and roles of intermedi aries. eir role in economic and social terms h as

been examined recently at lengt h in a report published by the Organisation

for Economic Co-operation and Development (OECD) in April, .

e role, function, liability, and exemptions of intermediaries are subjects

not entirely devoid of complexity for the following reasons.

 Matthew Coll ins, e Law of Defamation on the Inter net, d ed. (Oxford: Oxford Uni-

versity Press, ) at , para . ..

 US Communications Decency Act, ,  U.S.C. s . ; UK Defamation Act, , c.,

s. ; Electronic Comm erce (EC Directive) Regulations, (), SI /; Australia

Broadcasting Se rvices Act, , , s. (); and Directive //EC of t he European

Parliament and of t he Council (Directive on elect ronic commerce).

 When the phrase “Internet i ntermediary liabil ity” was typed into G oogle Scholar on 

October , , art icles and cases bubbled up from cy berspace.

 Karine Perset, “e Economic and Social Role of Internet Intermediaries,” OECD Digital

Economy Papers, No.  (), online at www.oecd.org/dataoecd///.pdf;

Graham Smit h, Internet Law and Regulation , th ed. (London: Sweet Maxwell, );

Matthew Col lins, e Law of Defamation and the Int ernet, (Ox ford: Oxford University

Press, ). See also: Patr ick Milmo QC, et al., eds ., Gatley on Libel and Slander, th edi-

tion (London: Sweet & Maxwel l, ).

  Cyberlibel: Information Warfare in the st Century?

) Interchangeable Terminology

Dierent names are interchangeably used for the same concepts. Examples

include (car riers/conduits, content hosts/hosts/websites, and exemptions/safe

harbours). Further, the way these individual terms are employed creates regret-

table confusion, as in, for example, the insertion of the adjective “mere” before

the word “conduit,” which leaves the impression there is a distinction between

a “mere conduit” and a “conduit.” See also Kaschke v. Gray & Anor, [ ]

EWHC  at para.  for use of the words “storage” and “mere storage.”

See regulat ion  of Electronic Commerce (EC Directive) Regulati ons, () SI

/ (U.K.)

To add to the confusion, sec tion  of t he UK’s Defamation Act , c. 

(UK) denes “publisher” dierently from a publisher in a defamation act ion

as Justice Eady expla ins in Metropolitan International Schools Ltd. (t/a Skill-

strain and/or Traingame) v. Designtechnica Corp (t/a Digital Trends) & Ors,

[] EWHC  at paras. – (QB):

. . . s.() of the Defamation Act  states:

“In defamation proceedings a per son has a defence if he shows that —

(a) he was not the author, editor or publisher of the statement com-

plained of,

(b) he took reasonable ca re in relation to its publication, and

(c) he did not know, and had no reason to bel ieve, that what he did

caused or contributed to the public ation of a defamatory s tate-

ment .”

ere is some confusion about the terminology in this par t of the statute be-

cause, whereas in most places the notion of “publication” corresponds with

the general usage i n the law of defamation, “publisher” is dened in s .() to

mean “a commercial publisher, t hat is, a person whose business is issuing

material to the public, or a section of t he public, who issues materia l con-

taining the statement in the course of that business”. e dierent usage is

recognised in s.() of the Act, which is the inter pretation section.

is dual usage of “publisher” in the Ac t is apt to cause part icular con-

fusion in the present context . [Google] would appear to be a business which

issues material to the public, or a section of the public . Yet the common law

test of whether [Google] published the words complained of is not neces-

sarily t he same as th at under the statute of whether it “issues material con-

taining t he statement in the course of that business”.