A comparative analysis of the liability of intermediary service providers

Abstract

Much has been written, both by local and foreign authors, about the highly contentious subject of the liability incurred by Internet intermediaries resulting from the provision of their services. The rapid evolution of the Internet from a basic communications tool, its users resembling „almost a form of private members‟ club,‟ to the worldwide forum for communication, commerce and media it has developed into continues to fuel this discussion and maintain its relevance. Some have described the Internet as a „meta medium‟ that „combines aspects of the telephone, post office, movie theatre, television, newspaper, shopping mall, street corner, and a great deal more;‟ others as „a platform for broadcasting, group discussion, pulpit preaching and researching, and for a variety of content types such as text, video, audio and image.‟ This wide range of characteristics and uses requires the making of the assumption, unlike previous authors have argued, that the regulation of the Internet is an absolutely necessary and attainable goal. It is a fact that online activity, whether in the form of the various stages of e-commerce, the dissemination of multimedia works or the mirroring of real life social interactions, gives rise to a large number of disputes with a mixture of foreign elements, thus giving rise to the inevitable exercise of determining which laws apply; hence, the need to analyse ISP liability by comparing various laws arises This author examines the manner in which different legal systems deal with the liability of ISPs through the enactment of laws and subsequently, the courts‟ interpretation of those laws. For this purpose, the following are explored : 1. EU law, with a special focus on the ECD and the relevant judgements of the CJEU; 2. national laws transposing the ECD and other relevant legislation of individual MS, including Maltese law in light of the ECA and national court rulings; 3. US law, particularly the DMCA, CDA and LA as well as key US court judgements; 4. other jurisdictions, insofar as these are pertinent to make suggestions for the betterment of the European regime. The method adopted is not to explore individual court decisions or ISP liability as it arises from particular areas of law, such as IP or defamation law. Rather, this author identifies the safe harbour provisions available to online intermediaries under EU and US law and considers their transposition and interpretation, while taking into account recent technological developments which may have altered the technological and legal landscape as it was at the time of enactment.