Legal Remedies against Network Layer Internet Intermediaries
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Presented at CODEBLUE2018@TOKYO 2018 by
Network layer intermediaries, such as ISPs, hosts, and network operators, are increasingly called upon to detect and prevent wrongdoing taking place online. A variety of legal remedies have been built on the assumption that these actors are often best placed to bringing infringing activity to an end, and to police networks and systems under their control against wrongdoing. What is the proper role of a network layer intermediary who is called upon to assist a victim of wrongdoing? Who should pay for the costs of doing so? How is a balance to be struck between the competing fundamental rights of the victim, the intermediary, and end users?This paper examines these questions from the perspective of two categories of legal remedies that have developed in the United Kingdom and European Union. First, this paper examines court-ordered obligations to prevent access to unlawful material, also known as ‘website blocking injunctions’. These remedies have developed into a sophisticated tool for rapidly preventing access to infringing films, television broadcasts and other unlawful material. However, they represent a derogation from the principle of network neutrality, and require a careful assessment of proportionality and the risk of ‘over-blocking’. Second, this paper examines remedies requiring intermediaries to disclose information about suspected wrongdoers. Such obligations are often necessary to enable a claim to be pursued against an anonymous wrongdoer, but require a balance to be struck with ISPs’ data protection and confidentiality duties. This paper argues that a strong economic and normative case can be made for imposing targeted and proportionate obligations on network layer intermediaries to take steps aimed at upholding third parties’ rights and ensuring the reliable and secure operation of higher-layer services. However, it is necessary for those obligations to be counterbalanced by (i) strong procedures and safeguards to uphold countervailing rights; (ii) safe harbours to insulate network layer intermediaries from monetary liability; and (iii) in appropriate cases, reimbursement of costs and expenses incurred in preventing third parties’ wrongdoing where the intermediary was legally innocent.