Ivar Hartmann, FGV Law School - Rio de Janeiro, Brazil
Online platforms for decentralized content production or for plain social interaction constitute one of the fundamental frontiers of innovation on the internet. Companies and other entities contribute to this by designing the system and maintaining it in their servers, while also takings steps to guarantee that internet users can make the best out of such environments. That is to say, although the purpose of such companies is to profit from user-generated content or to simply let individuals co-exist in communion, they play a crucial role as intermediaries. Because they are the managers of online communities where – just like in the real world – law infringement can occur, these companies are constantly sued by users themselves or third parties under the allegation that they have a responsibility for what is done in their platform.
Even though safe harbor provisions exist in American and European Law that release intermediaries from a duty to proactively monitor and filter user activity on their platform, the liability standard is constantly shifting. Copyright owners pleas, for example, demanding a different, less passive role for intermediaries has been gaining ground recently. The most poignant examples of that in recent times are the U.S. Court of Appeals for the Second Circuit’s decision in April 2012 that overturned a summary judgment dismissing Viacom’s case against YouTube and the “right to be forgotten” ruling by the Court of Justice of the European Union.
This creates an environment where safe harbor provisions no longer offer enough protection against the high risk of liability. Engaging in full-fledged filtering, on the other hand, has its problems. As a result, intermediaries find themselves between a rock and a hard place.
This article describes such setting – where intermediaries have incentives both to filter and not to filter content on their platforms – and outlines a few arguments why enabling and encouraging users themselves to filter content on platforms could present itself as a solution to intermediaries’ problems. It is not intended as an exhaustive enumeration of the arguments in favor and against having users themselves filter content – be it social networks, video streaming websites, forums or peer-to-peer file-sharing networks. Rather, this article proposes a first approach on the subject. The driving purpose is to find a solution to the increasingly dire situation of online intermediaries – without which the internet as we know simply wouldn’t exist.