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26 Fordham Intell. Prop. Media & Ent. L.J. 855
Article by Michal Lavi
ecent technological developments allow Internet users to disseminate ideas to a large audience. These technological advances empower individuals and promote important social objectives. However, they also create a setting for speech-related torts, harm, and abuse.
One legal path to deal with online defamation turns to the liability of online content providers who facilitate the harmful exchanges. The possibility of bringing them to remove defamatory content and collecting damages from them attracted a great deal of attention in scholarly work, court decisions, and regulations. Different countries established different legal regimes. The United States allows an extensive shield—an overall immunity, as it exempts the liability of content providers in speech torts. This policy is not adopted worldwide. The E.U. directive outlines a “notice-and-takedown” safe haven. Other countries, such as Canada, use common tort law practices. This Article criticizes all of these policy models for being either over or under inclusive.
This Article makes the case for a context-specific regulatory regime. It identifies specific characteristics of different content providers with their own unique settings, which call for nuanced legal rules that shall provide an optimal liability regime. To that end, the Article sets forth an innovative taxonomy: it relies on sociological studies premised on network theory and analysis, which is neutral to technological advances. This framework distinguishes between different technological settings based on the strength of social ties formed in each context. The Article explains that the strength of such ties influences the social context of online interactions and flow of information. The strength of ties is the best tool for designing different liability regimes; such ties serve as a proxy for the severity of harm that defamatory online speech might cause, and the social norms that might mitigate or exacerbate speech-related harm.
The proposed taxonomy makes it possible to apply a sociological analysis to legal policy and to outline modular rules for content providers’ liability at every juncture. This Article does so while taking into account basic principles of tort law, as well as freedom of speech, reputation, fairness, efficiency, and the importance of promoting innovation.
* Ph.D. University of Haifa-Faculty of Law. This Article is drawn from my dissertation titled, “Social Context, Law and Technology—Rethinking Intermediaries’ Liability for Speech Torts,” written under the supervision of Tal Zarsky. I am grateful for his insightful guidance. This project also benefitted from valuable comments of Jonthan Lewy and from conversations with Jack Balkin, Gustavo Mesch, and Guy Pessach. I also thank the participants of the Intermediaries’ Liability Symposium, University of Haifa (May, 2012). Finally, I am much grateful to Katie Rosenberg, Elizabeth Walker and their colleagues on the Fordham IPLJ for outstanding work that profoundly improved the quality of this Article.