http://cmpf.eui.eu/events/combating-hate-speech.aspx Giovanni Sartor EUI - European University Institute of Florence CIRSFID - Faculty of law, University of Bologna March 26, 2012

1. Intermediaries’ liability for hate speech
Giovanni Sartor
EUI - European University Institute of Florence
CIRSFID - Faculty of law, University of Bologna
March 26, 2012
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2. The user-generated internet
Internet users write the web, by inputting materials in various containers:
web sites (web pages)
blogs
on-line repositories of texts (scribd), photos (flickr), movies
(youTube), music, etc.
social network
on line forums, comments to other people’s blogs, etc.
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3. Making the provider liable
Should providers be liable (for torts and/or crimes: copyright, libel,
defamation, hate crimes, child pornography, etc.) when:
hosting material such that its posting is illegal (to the detriment of
privacy, copyright, equality-dignity, etc.)
taking down material such that its posting is legal (to the detriment of
freedom of speech, political or economic freedoms, etc.)
Problem: should there be immunity when uploading/keeping illegal
material; and/or taking down legal material?
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4. The basic legal discipline
Host providers are immune from civil and criminal responsibility for illegal
user-generate content:
in the US according to two instrument:
the DMCA (digital millennium copyright act), which provides immunity
from copyright violations
the CDA (communications decency act) which provides broader
immunity from other kinds of illegal content
in Europe according to the E-Commerce Directive, which addresses all
kinds of illegal content
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5. Should the provider be responsible? Yes
Since, at least with regard to civil liability
the provider is profiting from access to the hosted information
(fairness)
the provider is identifiable and has the resources for covering
compensation (compensation, risk sharing)
the provider can and should be incentivised to prevent damage by
removing or filtering illegal information (prevention/efficiency)
Current immunities should be eliminated. They are subventions to
providers, which are no longer needed now that (some) providers enjoy
huge economic success
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6. Should the provider be responsible? No
Since,
the provider has not created the content
making the provider liable will impose costs on the provider and put at
risk the current business model (free access)
the provider will likely exceed in censorship: if it were considered to be
liable it will remove all content having even a small chance of being a
source of liability (freedom of expression)
Immunities should be preserved and strengthened. The provider only has a
small benefit from the presence of particular materials on its platform, a
much larger benefit goes to the uploader and to society: incentive to take
down outweighs incentive to preserve even when social interest requires
preserving.
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7. First model. Notice and take down: DCMA 512
Immunity for hosting- No liability for the provider that complies with notice
and take down. The procedure:
right holder sends notice of infringing material to the ISP’s agent
provider takes down and informs customer
if customer sends counter-notice, then provider informs right-holder
if right-holder does not bring lawsuit, provider puts back material
Immunity for removing. Provider immune if content:
claimed to be infringing
appearing to be infringing
Plusses: Passive role for provider, involvement of the uploder
Minuses: Noticed provider tend to take down any material, to avoid liability
(but uploader has chance to respond).
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8. Second model. Absolute immunity: CDA, section 230
Full immunity for hosting:
providers are not responsible for hosting illegal material (except
copyright)
limited possibility of injunctions against providers
Immunity for removing:
immunity for screening objectionable content
immunity for deleting such content
Are providers allowed to engage in censorship, to maintain civility? Yes if in
good faith.
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9. Third model: immunity when not knowing. EU e-commerce
directive
Provider not liable for hosting illegal content if:
has no actual knowledge of illegal material (and for damages has no
knowledge of facts from which the illegal information is apparent), or
upon obtaining such knowledge or awareness, acts expeditiously to
remove or to disable access to the information
Member states may not impose general obligations on providers
to monitor the information
to actively to seek facts or circumstances indicating illegal activity
No clear indication of immunity for removing content
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10. Problem. What is knowledge of illegality?
Knowledge of the illegality of hosted material x involves 2 aspects:
1 factual knowledge: material x is hosted on the provider’s server
2 legal knowledge: material x is illegal
Some issues
What is knowledge of illegality: true belief (the knower views the
contrary as impossible or absurd)?
Should the provider actively engage in getting legal knowledge?
What should it do with regard to the vast area of penumbra (or
rather, the gradual dimming) between the light of legality and the
darkness of illegality?
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11. Fourth model: The administrative model
A public authority gives presumptive indications on what to take down:
law enforcement authority (injunctions)
independent authority (Hadopi-FR, Italian AGCOM, for copyright,
data protection supervisors, etc.)
public administrations
Plusses: filter on unreasonable requests
Minuses: difficulty in challenging the authority’s decision, possibly no
involvement of uploader
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12. The 2010 draft Council recommendation for Public-Private
Partnership to Counter the Dissemination of Illegal Content
Combination of models 1, 3 and 4:
binding legal request from law enforcement authority → obligation to
take down
notification from citizen → obligation to take down if content is
clearly illegal
notification from law enforcement authorities or authorised complaint
hotline → obligation to take down unless content is considered to be
legal, in this case notify authority
Issues:
no right of the up loaders to counterclaim (they are excluded from the
process)
no clarity on immunity for taking down legal material (providers can
free themselves of any responsibility through contracts with users)
incentive to censorship (it is always the safer choice)
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13. Legality-illegality in the recommendation
IPSs should categorise materials they are notified about into there classes:
Certainly legal →Obligation to take it down if binding request by
authority, obligation to take down or permissible to take down if
notified by citizens or authorised complain lines
Possibly legal and possibly illegal → Obligation to take it down if
binding request by authority or authorised complain lines. Permissible
if notified by citizens.
Certainly illegal → Obligation to take it down whenever notified
How to check whether content falls within what category?
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14. Conclusions
Providers cannot and should not have the obligation to prevent on-line
hate speech (no preventive filter on speech). A good thing, possibly:
hate comes to the light, and society can express its judgment on it
and take appropriate decisions. Right to respond for victims?
Providers may be compelled to take down hate materials, but
respecting the adversarial principle (unless material is anonymous),
possibly on the basis of a presumptive authoritative assessment, but
judges should have the last word.
Providers should not be obliged to assess the legality of materials, but
they should be permitted to take down in good faith inappropriate
materials, depending on the kind of platform (considering how easily
users can avoid exposure).
Uploaders should be given a role and enabled to express their opinion.
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15. This is the end!
Thanks for your attention!
giovanni.sartor@eui.eu
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