The Illusion of Internet Intermediation

The BBC has printed a short essay by Michael Geist, Ottawa law professor and cyber-dreamer [Ed.: that is unkind] of some renown. Unconvincingly, it is based on an alarmingly obvious inclusion of a useful premise of convenience – in this case the “internet intermediary” – which is not founded in anything under Canadian or Commonwealth law but (perhaps and to be fair) ecumenically inserted to assist in the desired end within the argument:

The case places the spotlight on the liability of internet intermediaries. The importance of the issue extends well beyond just internet service providers – corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law. The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.

Since when is a publisher in any medium an uninvolved intermediary? The act of publication is just that – an act. I publish this website and even get meagre ad revenue for doing so. I am actively involved with the process of writing, editing and controlling what you see here – even in the comments that I do not author. I monitor and I remove. That is my responsibility. Some believe that there is a new order in which responsibility is no longer part of presenting a civil public discourse. Mr. Geist is one of the most fervent evangelists for this faith. Yet there is no basis for the proposition in fact – the law is still the law and those responsible for publication are responsible. Hate law and child porm crimes as well as civil libel are still legal structures in place to respond to all ill-advised publication. Who ever promised that they were somehow inapplicable simply because the text appeared on a cathode ray tube and not mashed and rolled out tree fibres?  The best analogy I can find is the party that sells items that need to be in compliace with safety standards and then complains when the product turns out to be a lemon that the pre-existing standards are “red tape”.

This is nothing more than “outta be” law. Wishery.  Short reference is made to the fact that there are legal tests in Canada and the US which ensure a level of responsibility exists – that there is no neutral intermediary status.  And the fact that the US has a law of some nature, the details of which were beyond the scope of the essay, does not make it wise or even relevant for other jurisdictions.  Without an analysis of how the neutral internet intermediary role would/could/should operate and its effect on other forms of publication, the simple allusion to its existence is not very useful.  Alluding to it out as a fully formed alternative simply does not seem appropriate.

Some related links: