From Intermediary liability to responsibility, the boundary of digital platform power : A comparative analysis


Internet intermediary has become one of the most critical Internet governance issues of our time, including electronic network, digital platform and the network of connected “things”. In particular, modern legal theory and policy still struggle with defining an adequate framework for the liability and responsibility of Internet intermediary for user-generated content.
This paper contextualizes the recent developments in intermediary liability theory and policy with particular regard to the law and jurisprudences of China and US
. By reviewing relevant lawsuits and “Cybersecurity Law” , “Regulation on the Protection of the Right to Network Dissemination of Information”, the paper reveals that Internet intermediaries have been regularly asked by public actors to take active steps to enforce national legislation in China . Miscellaneous policy tools have been implemented—such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies .They form a strict administrative partnership and Internet intermediaries have become essential governmental agencies. This combination of quasi-normative, quasi-executive and quasi-judicial powers assigns a particularly authoritative position to the intermediaries. While in the United States, twenty-three years ago, the US Congress enacted Section 230 of the “Communications Decency Act 1996”, which states that, with a few exceptions, Internet intermediaries are immune from liability for user-generated content. The paper reviews the US experience with strong intermediary immunity over two decades. Critics of Section 230 raise valid concerns that the broad immunity often prevents lawsuits against digital platforms. However the paper finds that many of the largest US digital platforms have voluntarily implemented policies to block illegal and objectionable content and help law enforcement. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. While the current legislative tendencies seem to encourage the adoption of “voluntary measures” , the paper argues that Internet intermediaries may enjoy far- reaching powers on the cyberspaces under their control. It is necessary to caution against excessive involvement by and a “responsibilisation of intermediaries”, which may effectively delegate de facto regulatory and police functions to private entities. Whether in China or US, due process and fundamental guarantees have been got mauled by technological enforcement, curbing fair uses of content online and silencing speech.