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Observations from a Series of National Case Studies Governance of Online Intermediaries: Observations from a Series of National Case Studies The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Urs Gasser & Wolfgang Schulz, Governance of Online Intermediaries: Observations from a Series of National Case Studies (Berkman Center Research Publication No. 2015-5, Feb. 18, 2015). Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:16140636 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#OAP Research Publication No. 2015-5 February 18, 2015 Governance of Online Intermediaries Observations From a Series of National Case Studies Urs Gasser Wolfgang Schulz This paper can be downloaded without charge at: The Berkman Center for Internet & Society Research Publication Series: https://cyber.law.harvard.edu/publications/2015/online_intermediaries The Social Science Research Network Electronic Paper Collection: Available at SSRN: http://ssrn.com/abstract=2566364 23 Everett Street • Second Floor • Cambridge, Massachusetts 02138 +1 617.495.7547 • +1 617.495.7641 (fax) • http://cyber.law.harvard.edu • [email protected] Urs Gasser and Wolfgang Schulz GOVERNANCE OF ONLINE INTERMEDIARIES: OBSERVATIONS FROM A SERIES OF NATIONAL CASE STUDIES February 18, 2015 The Berkman Center for Internet & Society Research Publication Series WITHIN THE ACKNOWLEDGEMENTS This synthesis and case study series would not have been possible without the dedication and hard work of many contributors from the Network of Centers (NoC) and the Berkman Center. In particular, we would like to thank our case study authors, who dedicated countless hours to this project and whose efforts were instrumental in its completion. Many thanks also to our friends and collaborators Raimondo Iemma, Felix Krupar, Juan Carlos De Martin, Mayte Peters Schomburg, Dana Walters, and Jonathan Zittrain for guidance, collaboration, and support. We wish to extend our gratitude to Adam Holland and Andy Sellars for conceptual guidance and editorial work, and Gretchen Weber for communications support. Special thanks are due to Annie Pruitt for coordinating this research effort and providing extensive editorial support. The Berkman Center is grateful for workshop support by the Radcliffe Institute for Advanced Studies, and grant support by the MacArthur Foundation. Urs Gasser Governance Of Online Intermediaries: Observations From A Series Of National Case Studies! ! Urs Gasser & Wolfgang Schulz1! ! ! ! ! ! ! ! ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1Urs Gasser serves as Executive Director of the Berkman Center for Internet & Society at Harvard University and Professor of Practice at Harvard Law School. Wolfgang Schulz is Director of the Hans-Bredow Institute and the Humboldt Institute for Internet and Society, and Professor of Law at the University of Hamburg. The authors wish to thank Annie Pruitt for editorial assistance and the contributors to the Network of Center’s Online Intermediaries project for their collaboration, and the MacArthur Foundation for providing seed funding to the Berkman Center for this research initiative. For additional information on the initiative, please contact Urs Gasser, Berkman Center for Internet & Society, at [email protected] ! ! ! Table of Contents I. Introduction ............................................................................................................................ 1 II. Terminologies and Perspectives........................................................................................... 2 A. Framework ...................................................................................................................................... 2 B. Observations.................................................................................................................................... 3 III. Governance Structures and Models................................................................................... 4 A. Overview.......................................................................................................................................... 4 B. Focus Areas ..................................................................................................................................... 6 IV. Role of the Government....................................................................................................... 9 A. Functions........................................................................................................................................ 10 B. Branches ........................................................................................................................................ 11 C. Enforcement................................................................................................................................... 12 V. General Observations.......................................................................................................... 14 A. Evolutionary Paths ....................................................................................................................... 14 B. Interplay Between Constitutional Rights and Intermediary Liability .................................... 15 VI. Conclusion........................................................................................................................... 16 A. Summary........................................................................................................................................ 16 B. Future Considerations.................................................................................................................. 17 VII. Appendices A-H: Case Studies...…...………...…...…...............…………......…..........19 ! ! ! ! ! ! ! ! I. Introduction Online intermediaries in various forms – including search engines, social media, or app platforms – play a constitutive role in today’s digital environment. They have become a new type of powerful institution in the 21st century that shape the public networked sphere, and are subject to intense and often controversial policy debates. This paper focuses on one particular force shaping the emergence and future evolution of online intermediaries: the rapidly changing landscape of intermediary governance at the intersection of law, technology, norms, and markets. Building upon eight in-depth case studies and use cases, respectively, this paper seeks to distill key observations and provide a high-level analysis of some of the structural elements that characterize varying governance regimes, with a focus on intermediary liability regimes and their evolution.! Analyzing online intermediary governance issues from multiple perspectives, and in the context of different cultures and regulatory frameworks, immediately creates basic problems of semantic interoperability. Lacking a universally agreed-upon definition,2 this synthesis paper and its’ underlying case studies are based on a broad and phenomenon-oriented notion of online intermediaries, as further described below. In methodological terms, the observations shared in this synthesis paper offer a selective reading and interpretation by the authors of the broader take-ways of a diverse set of case studies examining online intermediary governance frameworks and issues in Brazil, the European Union, India, South Korea, the United States, Thailand, Turkey, and Vietnam.3 These case studies, in turn, have emerged in the context of an international research pilot by the Global Network of Internet & Society Research Centers (NoC), through a process of in-person consultations and remote collaborations among the researchers, and are based on a set of broader questions regarding the role of online intermediaries in the digital age.4 ! As a synthesis document, this paper is not aimed at providing a detailed or even comprehensive discussion of online intermediary governance, but it is rather intended to capture some of the insights and observations emerging from the analysis and comparative discussion of a limited – albeit diverse – sample of national regimes through an internationally coordinated academic research effort. The synthesis paper therefore does not cover all aspects of intermediary governance, but focuses on the issues that are examined in the case studies. For a more detailed account of country-specific frameworks and their interaction with online intermediaries, as well as a deeper analysis of the issues highlighted in this paper, we refer to the set of case studies released in tandem with this synthesis. Together, these materials seek to complement important policy-oriented research efforts on online intermediaries by strengthening !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 But see OECD. The Economic and Social Role of Online intermediaries (2010), 9. http://www.oecd.org/Internet/ieconomy/44949023.pdf: “’Online intermediaries’ bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties.” 3 See Appendices A – H for the full text of the case studies. Additionally, the case studies are available for comment
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