Platform Liability Trends Around the Globe: Taxonomy and Tools of Intermediary Liability

This is the second installment in a four-part blog series surveying global intermediary liability laws. 

The web of global intermediary liability laws has grown increasingly vast and complex as policymakers around the world move to adopt stricter legal frameworks for platform regulation. To help detangle things, we offer an overview of different approaches to intermediary liability. We also present a version of Daphne Keller’s intermediary liability toolbox, which contains the typical components of an intermediary liability law as well as the various regulatory dials and knobs that enable lawmakers to calibrate its effect.

Five-part continuum of Intermediary Liability 

Liability itself can be distinguished on the basis of remedy: monetary and non-monetary liability. Monetary liability results in awards of compensatory damages to the claimant, while non-monetary liability results in orders that require the intermediary to take steps against wrongful activities undertaken through the use of their services (usually in the form of injunctions to do or refrain from doing something). 

Monetary remedies are obtained after establishing an intermediary’s liability—which ranges from strict, fault-based, knowledge-based, and court adjudicated-liability to total immunity. Various configurations along this spectrum continue to emerge, as regulators experiment with regulatory dials and knobs to craft legislation tailored toward specific contexts.

The categories introduced in this section should be understood as general concepts, as many regulatory frameworks are not clear-cut or allow for discretion and flexibility in their application.

Under strict liability regimes, online intermediaries are liable for user misconduct, without the need for claimants to prove any fault or knowledge of wrongdoin

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