Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries

Abstract

This paper puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, our focus should be, rather than on the outcomes of intermediaries’ decisions, on their responsibility towards the reasoning processes in reaching these. What is necessary is a framework that, at the same time that it attaches responsibilities to such decisions, creates a cushioning system for their making, attenuating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artefacts whose use plans settle normative questions and play a fundamental role in the construction of our normative reality. Accordingly, an interpretive commitment must be required towards the integrity of such a reality. Every time intermediaries make a decision, as they always will and should, – in all this hidden jurisprudence – the integrity of our normative order and the values it reflects are at stake. All this must be seen as part of a broader concern with justice (corrective, normative) in the internal life of the information environment. For the same reason, however, we should not expect perfection from intermediaries, but responsible efforts. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid these (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding so enables us to move away from outcomes-based approaches towards a more granular and fairer system of intermediary liability.