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The scandal of intermediary: Acknowledging the both/and dispensation for regulating hybrid actors

The scandal of intermediary: Acknowledging the both/and dispensation for regulating hybrid actors
The scandal of intermediary: Acknowledging the both/and dispensation for regulating hybrid actors
The ambition of this chapter is twofold. First, it is an attempt to unveil the scandal of intermediary by stressing and sketching the hybridity of Internet intermediaries. It is argued from this assessment that the use of binary and exclusive oppositions in EU law, such as ‘active/passive’ and ‘general monitoring/monitoring in a specific case,’ has created confusion in as much as the ‘both/and’ dispensation has not been acknowledged. Second, this chapter aims to reconstruct a regulatory approach based on the premise that intermediation implies hybridity. It therefore argues that if Internet intermediaries are hybrid, the legal response to confine the increasing powers of actors performing intermediary activities can only be hybrid and plural. In particular, it suggests that the legal response should move away or go beyond the traditional civil liability question “When do Internet intermediaries have sufficient evidence to be vicariously liable?” to focus upon expressions of regulatory power, i.e. intermediaries’ own acts, with a view to confine this regulatory power, even if regulatory modalities are necessarily mixed and combined. This chapter therefore critically comments upon the evolution of intermediary liability in the EU, making the case that the E-commerce Directive should remain a cornerstone of the EU legal framework.
Edward Elgar
Stalla-Bourdillon, Sophie
c189651b-9ed3-49f6-bf37-25a47c487164
Thorburn, Robert, Henry
3bc357b8-47fd-4d7e-947d-da6f725c4f52
Petkova, B.
Ojanen, T.
Stalla-Bourdillon, Sophie
c189651b-9ed3-49f6-bf37-25a47c487164
Thorburn, Robert, Henry
3bc357b8-47fd-4d7e-947d-da6f725c4f52
Petkova, B.
Ojanen, T.

Stalla-Bourdillon, Sophie and Thorburn, Robert, Henry (2019) The scandal of intermediary: Acknowledging the both/and dispensation for regulating hybrid actors. In, Petkova, B. and Ojanen, T. (eds.) Fundamental Rights Protection Online: the Future Regulation of Intermediaries. Edward Elgar. (In Press)

Record type: Book Section

Abstract

The ambition of this chapter is twofold. First, it is an attempt to unveil the scandal of intermediary by stressing and sketching the hybridity of Internet intermediaries. It is argued from this assessment that the use of binary and exclusive oppositions in EU law, such as ‘active/passive’ and ‘general monitoring/monitoring in a specific case,’ has created confusion in as much as the ‘both/and’ dispensation has not been acknowledged. Second, this chapter aims to reconstruct a regulatory approach based on the premise that intermediation implies hybridity. It therefore argues that if Internet intermediaries are hybrid, the legal response to confine the increasing powers of actors performing intermediary activities can only be hybrid and plural. In particular, it suggests that the legal response should move away or go beyond the traditional civil liability question “When do Internet intermediaries have sufficient evidence to be vicariously liable?” to focus upon expressions of regulatory power, i.e. intermediaries’ own acts, with a view to confine this regulatory power, even if regulatory modalities are necessarily mixed and combined. This chapter therefore critically comments upon the evolution of intermediary liability in the EU, making the case that the E-commerce Directive should remain a cornerstone of the EU legal framework.

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Accepted/In Press date: 30 January 2019

Identifiers

Local EPrints ID: 428335
URI: https://eprints.soton.ac.uk/id/eprint/428335
PURE UUID: dcf29480-b238-41ad-9e93-71cdb22d0f40

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Date deposited: 21 Feb 2019 17:30
Last modified: 13 Mar 2019 17:34

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Contributors

Author: Robert, Henry Thorburn
Editor: B. Petkova
Editor: T. Ojanen

University divisions

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