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date: 22 November 2019

Summary and Keywords

Intermediary liability is at the center of the debate over free expression, free speech, and an open Internet. The underlying policies form network regulation that governs the extent that websites, search engines, and Internet service providers that host user content are legally responsible for what their users post or upload. Levels of intermediary liability are commonly categorized as providing broad immunity, limited liability, or strict liability. In the United States, intermediaries are given broad immunity through Section 230 of the Communication Decency Act. In practice, this means that search engines cannot be held liable for the speech of individuals appearing in search results, or a news site is not responsible for what people are typing in its comment section. Immunity is important to the existence of free expression because it ensures that intermediaries do not have incentives to censor content out of fear of the law. The millions of users continuously generating content through Facebook and YouTube, for instance, would not be able to do so if those intermediaries were fearful of legal consequences due to the actions of any given user.

Privacy policy online is most evidently showcased by the European Union’s Right to be Forgotten policy, which forces search engines to delist an individual’s information that is deemed harmful to reputation. Hateful and harmful speech is also regulated online through intermediary liability, although social media services often decide when and how to remove this type of content based on company policy.

Keywords: intermediary liability, privacy, copyright, hate speech, Digital Millennium Copyright Act, CDA Section 230, General Data Protection Regulation, Right to be Forgotten, NetzDG, information policy

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