Intermediaries are commonly viewed as passive and neutral actors, with various defences created to that end. Increasingly, however, service providers are being forced or expected to play a more active role in the process of law enforcement, whether this be to prevent the diffusion of offensive content or copyright infringement, enforce data subjects’ rights, or provide information to law enforcement agencies outside of their country of establishment. Are service providers doing too much? Or are they not doing enough? Have lawmakers managed to strike the right balance between their rights and duties? Is international law equipped to deal with the increasing transnational interaction between law enforcement and service providers?
Grappling with the dichotomous realities in the digital environment, intermediaries often go overboard with compliance standards resulting in restriction of individual freedoms and censorship. The latter is often compounded by uninformed intermediary liability policies, blunt and heavyhanded regulatory measures, failing to meet the principles of necessity and proportionality, and a lack of consistency across these policies create an uncertain environment for intermediaries to operate in. There has been increasing recognition that intermediaries require stronger accountability and restriction benchmarks that would allow for fairer assessments, accurate showcasing and democratization of using appropriate and relevant tools.
Defining which platforms and services constitute intermediaries is critical to developing a balanced regulatory framework for liability. Any definition of an intermediary should account for the various roles and functions that intermediaries perform in relation to unlawful content. It must also note, the different categories of platforms and services being clustered under the definition. This is an important consideration, given that intermediaries serve multiple functions in relation to content, for example a platform may transmit and host third party content and the process of categorization is often, not clear cut. Further, online intermediaries increasingly employ automated agents such as applications rather than human actors when handling third party content.
Search engines are an example of this as they perform as services which offer the user a spectrum of hyperlinks, characterized by the search parameters determined by the user. Based on automatic referencing to desired content could lead to the conclusion that they resemble a technical tool, however, it has to be taken into account that search engines can concentrate on searching specific contents like pictures, music or other digital content.In contrast, hyperlinks are selected consciously which implies that actual knowledge of the content is a prerequisite, even though this does not imply that this would lead to knowledge of changes made in content after the hyperlink has been set. Finally, there are hybrid forms between search engines and hyperlinks, like web sites containing hyperlinks generated by a search engine and results are published to a large community.
More importantly, intermediaries may perform simultaneous and competing roles in relation to producing, disseminating and as end users of content. Another critical distinction to bear in mind is that online service providers may also deliver their own content and definitions must evolve bearing this distinction between 'pure' intermediaries in an intermediation role between third parties and those intermediaries that give access to, host, transmit or index content or services that they themselves originate.
Given the complexity of functions and roles that intermediaries serve, it is not surprising that definition of intermediaries varies widely in its interpretation and application across jurisdictions and regimes. Different types of Internet intermediaries may have different legal responsibilities under the various national or supranational regimes. The most common categories are mere conduits (or communications or access providers), hosts, providers of caching services, and search engines (or information location tools) or other linking intermediaries.
There are some edge cases that do not clearly fall into this definition, depending on one’s interpretation.These include manufacturers of products (rather than services) that are used for accessing content, such as Web browser and Internet filtering software for example Apple now supports content blocking. Content producers are excluded but can serve both functions for example newspapers for UGC. When developing liability rules for intermediaries, it is important that legal requirements are appropriate and proportional to the function and size of the intermediary. Thus the definition of an intermediary that we use may not coincide with the legal definition of an intermediary in a particular jurisdiction, which in any case, differs markedly from one country to another.
The question of “who is an intermediary?” is not merely a question of linguistics, given the existing uncertainties and differences in definition that exist within the same jurisdiction and across regimes of data protection and liability regimes. For example, who can be considered an 'intermediary' within Article 11 of the Enforcement Directive, so that “rightholders are in a position to apply for an injunction” against such subjects “whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC [the InfoSoc Directive]”? Are 'intermediaries' the same subjects that the Ecommerce Directive refers to as 'information society service providers', and the InfoSoc Directive also calls 'intermediaries'?
Consider the heated arguments on the functions of certain platforms and services for example whether search engines may be considered intermediaries within Article 11 of the Enforcement Directive and increasing obligations on ISPs in tackling online infringements. The lack of certainty in defining intermediaries is evident in decisions such as the right to be forgotten ruling which seek to apply differing standards of data retention and data sharing obligations to the same function of intermediaries-search engines.
Legal conflicts do exist due to smorgasbord of definitions and approaches being applied to intermediaries across jurisdictions and regimes. Some obvious areas of conflict for intermediaries have emerged in the areas of IP enforcement, Transnational access to data, Security obligations, Domestic issues such as hate speech, public order, violence and harassment, Terrorism, Right to be forgotten, and more broadly in the approaches, defences, immunities and obligations applied to intermediaries.