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By popular request, a TC;DR (too complicated; didn’t read) thread summary of this blogpost. 1/10 https://www.cyberleagle.com/2021/02/corrosion-proofing-uks-intermediary.html
Post-Brexit a significant unknown has been whether the UK would adhere to, or depart from, the intermediary liability provisions of the EU ECommerce Directive. 2/10
The ECD has been in force for nearly 20 years: Arts 12 to 14 provide conduit, caching and hosting services with a range of protections from liability for illegal content and activities of their users. (Hosting protection explained here:) https://www.cyberleagle.com/2018/04/the-electronic-commerce-directive.html 3/10
Art 15 ECD prohibits Member States from imposing general monitoring obligations on conduit, caching and hosting services. That means, roughly, that a Member State cannot require them to scan and filter user content or proactively seek out illegal activity. 4/10
By contrast, Art 15 does not prevent imposition of targeted obligations such as requiring a ISP to block a specific website or a webpage identified by URL. 5/10
Art 15 has been seen as embodying an important principle: protecting internet users from governments who might want to enlist online intermediaries as choke points to control the flow of information across the internet. 6/10 https://www.cyberleagle.com/2017/05/time-to-speak-up-for-article-15.html
In its ‘No Deal’ Brexit guidance the UK government said that its policy approach would ‘continue to align’ with the ECD’s provisions on liability of intermediaries and general monitoring. That guidance remained in place until very recently. 7/10
Now the government says that it will retain a ‘notice and take down’ regime for hosts, but has omitted its previous approach of aligning with the prohibition on general monitoring. Instead, it refers to its #OnlineHarms legislative proposals. 8/10 https://www.gov.uk/guidance/the-ecommerce-directive-and-the-uk
The #OnlineHarms proposals (and, more so, the Interim Codes of Practice published alongside the govt’s Full Response to the White Paper) are replete with monitoring and filtering. It was unclear how they could be reconciled with Art 15. Now it seems clear that they cannot. 9/10
There is also a practical issue about how hosting (and conduit and caching) liability protections will be maintained in future. It is all too easy for legislation creating a new offence to omit the protections. For that, you’ll have to read the blog. 10/10 https://www.cyberleagle.com/2021/02/corrosion-proofing-uks-intermediary.html
Footnote: it helps to keep well in mind the difference between liability shields and obligations/responsibilities. Explainer here. https://www.techdirt.com/articles/20200824/13595845171/intermediary-liability-responsibilities-post-brexit-graham-smith.shtml
