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  • When: October 18, 2017, 12 pm
  • Where: ABF Woods Conference Room, 750 N. Lake Shore Drive, 4th Floor, Lakeside, Chicago IL 60611

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Intermediary Design Duties

Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the conduits through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users’ illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users’ content and behavior, courts today refrain from granting immunity only in cases in which intermediaries “materially contribute” to illegal online conduct. This has proven to be a very high juridical bar for plaintiffs to clear and a very generous protection for defendant providers. 

This doctrine rests on an outdated view of how most online intermediaries do business. Today, the largest online companies do not merely host and relay messages, uninterested in what their users say or do. They use users’ behavioral and content data to engineer online experiences in ways that are unrelated to the charming interest in making connections. Some of the most successful companies collect, analyze, and sort user content for publication in ancillary and secondary markets. This is how the CDA immunity doctrine, first developed by the courts two decades ago, is ill-suited to the world today. Online intermediaries are now aggressively exploiting user content in ways that the doctrine does not fully acknowledge, leaving public law priorities and consumer protections underenforced. Vulnerable people and historically subordinated groups have the most to lose under this approach. 

This Article proposes a reform that is adapted to online intermediaries’ outsized influence today. It proposes that, in each case in which defendant providers invoke the immunity, courts scrutinize the manner in which the provider elicits user content, as well as the extent to which those providers exploit that data in secondary or ancillary markets. Following this more searching approach, courts will return the doctrine to its roots in the language and purpose of the CDA: to shield intermediaries from liability for third-party online conduct only to the extent such providers operate as either true conduits of user content or Good Samaritans.

Courtesy of Fordham Law

Olivier Sylvain is an Associate Professor of Law at Fordham University School of Law. His academic interests are chiefly in information and communications law and policy. He has written a variety of law review articles, policy papers, news articlesnewspaper op-eds, and blog posts on current controversies in broadband policy, Internet governance, privacy, and copyright. He has been an invited speaker on the local NPR station and at several recent conferences and symposia across the United States and in Europe.

At Fordham, Olivier teaches Legislation and Regulation, Administrative Law, Information Law, and information law related seminars. He manages the Intellectual Property and Information Law concentration at Fordham. He is affiliated with the Center for Law and Information Policy and the Center on Race, Law, and Justice. Before entering academia, Olivier was a Karpatkin Fellow in the National Legal Office of the American Civil Liberties Union in New York City and a litigation associate at Jenner & Block, LLC, in Washington, D.C. He is on the board of directors for the New York affiliate of the American Civil Liberties Union.

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