Riordan Taxonomy

A Theoretical Taxonomy of Intermediary Liability

Jaani Riordan
Oxford Handbook of Online Intermediary Liability
Edited by Giancarlo Frosio
Print Publication Date: May 2020 Subject: Law, IT and Communications Law
Online Publication Date: May 2020 DOI: 10.1093/oxfordhb/9780198837138.013.3
Abstract and Keywords
This chapter aims to provide a taxonomy of the different types of liability which may be
imposed upon internet intermediaries, and a theoretical framework for talking about
problems of liability. This taxonomy is intended to situate each of these areas within an
overall framework for analysing legal responsibility and the different ways in which it
may be imposed upon facilitators of harm. First, this chapter begins by considering what
is meant by ‘liability’ and identifying the different forms that it may take, consistently
with widespread assumptions about moral agency and individual responsibility. Secondly,
this chapter analyses how liability may be attributed or imputed for the acts and omis
sions of others, noting a distinction between two models of responsibility which may be
termed ‘primary’ and ‘secondary’ (or accessory) liability. Thirdly, this chapter considers
the functions and policy justifications for imposing liability onto intermediaries for the
acts or omissions of others. Finally, this chapter provides an overview of the main kinds of
wrongdoing for which intermediaries may, in principle, be liable, by reference to English
and EU law, several of which are discussed in more detail elsewhere in this work.
Keywords: intermediary liability, internet intermediary, tort, primary liability, secondary liability, accessory liabili
ty, strict liability, negligence, joint tortfeasor, safe harbour, injunctions, remedies, enforcement costs, copyright,
defamation, hate speech, online harms, privacy, fundamental rights, disclosure
GIVEN the rapid emergence of internet technologies in modern life and commerce, it is
unsurprising that a growing array of regulatory schemes, statutory rules, judicial doc
trines, procedures, and remedies have something to say about internet intermediaries
and their legal duties. No discussion of intermediaries’ liability is complete without an un
derstanding of the many forms it may take, the policy levers it may serve, and the areas
in which liability may arise. This is an essentially cartographic exercise, as it involves
mapping the legislative, judicial, and regulatory landscape to identify and classify legal
norms of relevance to internet wrongdoing.
Far from being a lawless wasteland or ungovernable dominion, it is now well recognized
that the internet is, or should be, governed by the rule of law. This gives rise to new chal
lenges, many of which are discussed elsewhere in this Handbook: most acutely, how to
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develop liability rules which properly encourage intermediaries to avoid harmful uses of
their technologies without creating disproportionate or chilling effects; and how to craft
effective remedies that are scalable to meet swifter and more widespread forms of online
wrongdoing. Meeting these challenges also requires a degree of sensitivity on the part of
national courts and legislators in shaping and applying legal norms which may have ex
traterritorial effects or may profoundly shape the development and use of future tech
nologies and nascent industries, often in unpredictable ways.
In all of this, it is beneficial to have a conceptual architecture within which to analyse and
apply national and supranational liability rules to intermediaries, and to consider the poli
cy objectives that may be served by imposing (or excluding) liability of different kinds.
This is far from a simple task, both for the myriad forms that liability rules may take and
because it requires careful consideration of what ‘liability’ actually means in different
contexts.
This chapter therefore aims to provide a taxonomy of the different types of liability
(p. 58)
which may be imposed upon internet intermediaries, and a theoretical framework for
talking about problems of liability. This taxonomy is necessarily modest: it is not intended
to provide an exhaustive description of the diverse areas of civil and criminal wrongdoing
which may give rise to liability, but rather to situate each of these areas within an overall
framework for analysing legal responsibility and the different ways in which it may be im
posed upon facilitators of harm. Nor can it hope to address this question wholly uncon
strained by the liability structure of the English common law system, though it will en
deavour to propose a theoretical account which is of wider application.
First, this chapter begins by considering what is meant by ‘liability’ and identifying the
different forms that it may take, consistently with widespread assumptions about moral
agency and individual responsibility. Secondly, this chapter analyses how liability may be
attributed or imputed for the acts and omissions of others, noting a distinction between
two models of responsibility which may be termed ‘primary’ and ‘secondary’ (or accesso
ry) liability. Thirdly, this chapter considers the functions and policy justifications for im
posing liability onto intermediaries for the acts or omissions of others. Finally, this chap
ter provides an overview of the main kinds of wrongdoing for which intermediaries may,
in principle, be liable, by reference to English and EU law.
1. What is ‘Liability’?
Many usages of the word ‘liability’ can be identified, making it necessary to consider
what this term is commonly assumed to mean. In its most conventional sense, liability de
scribes the consequence of a person being held legally responsible for an event charac
terized as civil or criminal wrongdoing. Thus, the pithy phrase ‘D is liable’ is shorthand
for a legal formula which refers to the obligation imposed (or recognized) by a court or
administrative authority of competent jurisdiction to supply a prescribed remedy, or take
(or cease taking) a prescribed action, in response to an event.1 That event is usually, but
need not always be,2 characterized as a legal or equitable wrong, or breach of some other
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legal duty owed by D. The consequence of holding D liable is that C can go to court and
obtain an order for a remedy against D.
This section begins by considering the principles of moral agency and individual responsi
bility upon which most instances of liability are founded. This section then analyses the
two main forms of obligations which may be imposed on an intermediary who is found li
able for civil wrongdoing: monetary and non-monetary liability.
(p. 59) 1.1 Moral Agency and Individual Responsibility
In common law systems, the traditional function of tort law was to determine which
events generated remedial obligations and which did not.3 Liability rules could be used to
make a defendant answerable to the claimant ‘under the rules to be blamed, punished, or
made to pay.’4 In these and most other western legal systems, liability is traditionally
premised on the fundamental assumption that a natural or legal person is responsible for
her (and only her) own voluntary acts and omissions, subject to limited exceptions. The
traditional principle was articulated by Lord Sumner in Weld-Blundell v Stephens:
In general (apart from special contracts and relations and the maxim respondeat
superior), even though A is at fault, he is not responsible for injury to C which B, a
stranger to him, deliberately chooses to do.5
This principle reflects the intuitive claim of moral philosophers that a person is responsi
ble for ‘all and only his intentional actions’.6 Actions (or, it might be added, inactions) by
others are not ordinarily our responsibility; they are theirs to bear alone. This may be
thought of as the basic principle of moral agency on which liability is ordinarily founded.
Within each individual’s area of ‘personal moral sovereignty’, we treat that person as a
moral agent whose conduct may be assessed against the applicable liability rules.7
Because of this, an individual is normally responsible ‘only for conduct (and, within some
bounds, its consequences) that he has directed for himself’.8 Thus, we regard it as intu
itively unjust to impose liability upon an innocent person for the wrongful acts or omis
sions of others, absent something more.
The liability flowing from an individual’s own moral agency may be augmented by con
cepts of collective or secondary fault or responsibility, where ‘by applying facsimiles of
our principles about individual fault and responsibility’ an individual may be held liable
for the activities of another moral agent for whom they share fault or responsibility.9 It is
this latter basis for personal responsibility which is most relevant in discussions about in
termediary liability. However, this frequently gives rise to difficult questions in demarcat
ing the sphere within which an intermediary can legitimately be said to bear responsibili
ty for the acts and omissions of others.
Part of the difficulty underlying many discussions of intermediary liability is that they pre
suppose a particular model of liability or treat the term ‘liability’ as a form of (p. 60)
metonymy denoting a much wider spectrum of liability rules. Thus, it is typical to speak of
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‘liability’ as a binary and monolithic concept: either an intermediary is liable or it is not.

To avoid falling into this trap, it is helpful to disambiguate liability into its constituent
forms. In this section, we identify two main branches of liability: monetary and non-mone
tary. Monetary liability may be further divided along a spectrum comprising four main
standards: strict liability; negligence or fault-based liability; knowledge-based liability;
and partial or total immunity. Non-monetary liability may be further divided into pro
hibitory and mandatory obligations.
1.2 Monetary Liability
First, remedies for liability can be monetary, as in the case of orders to pay compensatory
damages or to disgorge profits.10 Such orders enforce secondary duties to correct losses
or gains resulting from the breach of a primary duty. These obligations to pay are backed
by the threat of executive enforcement and asset seizure. Almost all information torts rec
ognize an obligation on the legally responsible party to pay money.11 The preconditions
for obtaining a monetary remedy vary between types of wrongdoing and of course be
tween different legal systems; however, in broad terms they may be divided on a spec
trum from absolute liability to total immunity, and grouped under four headings.
1.2.1 Strict Liability

Strict liability requires intermediaries to internalize the cost of user misconduct without
proof of fault. By requiring intermediaries to pay for the social harms of third party
wrongdoing, a liability rule may increase the expected penalty—and thereby the deter
rent effect—of facilitating that wrongdoing, with the effect that intermediaries adjust
their activities to reduce wrongdoing to an optimal level.12 Strict liability has the advan
tage of being simple for courts, intermediaries, and claimants to assess, thereby allowing
efficient ex ante pricing decisions. However, although strict primary liability rules are
common, strict secondary liability rules are rare, mainly because it is unfeasibly costly for
intermediaries to monitor the lawfulness of all their users’ activities. This may also be be
cause strict secondary liability would pose a more direct challenge to the principles of
moral agency and individual responsibility considered earlier.
1.2.2 Negligence-Based Standards

Liability may alternatively be conditioned upon a finding of fault or limited to circum
stances in which an intermediary is said to owe a legal duty of care. For example, such a
(p. 61) duty may require intermediaries to act reasonably to prevent, deter, or respond to
primary wrongdoing. This would ordinarily represent a lower level of monitoring than a
strict liability standard, and thereby reduces the risk of over-deterrence by holding inter
mediaries to an objectively determined but imperfect standard of conduct—for example, a
rule which requires a website or platform operator to remove defamatory postings within
a reasonable period.13 Fault-based duties which are fixed by reference to external stan
dards such as industry practices can operate more stringently than knowledge-based du
ties; for example, by imputing constructive knowledge of tortious material where an inter
mediary is under a duty to seek it out or prevent its reappearance, or imposing liability
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for conduct of which an intermediary is wholly unaware on the basis of a duty to control
the wrongdoer.
1.2.3 Knowledge-Based Standards

By contrast, knowledge-based standards impose obligations upon intermediaries to re
spond to wrongdoing only once they receive sufficient information to reach a threshold
mental state; for example, that they know or reasonably infer that wrongdoing has oc
curred. This type of liability rule furnishes the dominant mechanism for European inter
net content regulation: notice and takedown. Less wrongdoing must be internalized,
which encourages optimal ex post enforcement. To prevent wilful blindness, knowledge
usually incorporates an objective measure, by which an intermediary is taken to know
facts which would have been discovered with reasonable diligence by a competent opera
tor standing in its shoes.14 In this way, liability rules which are premised on a standard of
knowledge being attained delimit liability according to whether the defendant’s mental
state was objectively culpable.
1.2.4 Immunity
At the other end of the liability rule spectrum, intermediaries can be partially or wholly
exempted from monetary liability. Immunity has the advantages of certainty, subsidizing
nascent technology industries and promoting ‘market-based self-help’,15 but has been
heavily criticized by some scholars as removing any incentives for least-cost avoiders to
intervene in enforcement, even where that might be the most efficient way to prevent
wrongdoing or bring it to an end,16 or is simply necessary to uphold claimants’ rights.
Conversely, immunity may serve to uphold countervailing public policy objectives, such
(p. 62) as constitutional protections for freedom of expression.17 In Europe, partial immu
nity in respect of monetary liability is conferred within three classes of passive, neutral,
and technical activities (hosting and caching, and transmission).18
1.3 Non-Monetary Liability
A second set of liability outcomes imposes non-monetary obligations upon intermediaries,

most commonly an injunction to do, or refrain from doing, certain acts (mandatory and
prohibitory injunctions, respectively). Such obligations may arise in circumstances where
the intermediary is itself liable as a primary wrongdoer, or where it is not so liable but in
stead must discharge a more limited duty to prevent or cease facilitating wrongdoing, as
sist a victim of wrongdoing, or uphold the administration of justice. Most commonly, this
latter class of non-monetary duties requires intermediaries to take reasonable and pro
portionate steps to prevent third parties’ wrongful activities from being facilitated by the
use of their services, when requested to do so.19
As has been observed on a number of occasions, the underlying duty is ‘of a somewhat
notional kind’:
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The duty of a person who had become involved in another’s wrongdoing was held … to be
to ‘assist the person who has been wronged by giving him full information and disclosing
the identity of the wrongdoers’. … It is, however, clear that this duty was of a somewhat
notional kind. It was not a legal duty in the ordinary sense of the term. Failure to supply
the information would not give rise to an action for damages. The concept of duty was
simply a way of saying that the court would require disclosure.20
Although both monetary and non-monetary forms of liability require some kind of recog
nized legal wrongdoing to have occurred, to impose non-monetary liability only requires
wrongdoing on the part of a third party, ‘and not that of the person against whom the pro
ceedings are brought’.21 For this reason, non-monetary remedies are described as impos
ing accountability without liability,22 though of course both monetary and non-monetary
liability may flow from the same wrongful activity.
Liability in this second, non-monetary sense is both broader and narrower than monetary
liability: as noted earlier, it can be imposed without proof of wrongdoing on (p. 63) the
part of the intermediary, but it only protects limited categories of interests and enforces
limited types of duties. Further, at least in Europe, injunctive remedies are impervious to
safe harbours, which ‘do not affect the possibility of injunctions of different kinds’, where
as monetary remedies may be unavailable in relation to protected activities of an interme
diary.23 Finally, while they may not impose a direct obligation to compensate a claimant or
disgorge profits, injunctions are enforced, ultimately, by the criminal law of contempt and
the associated machinery of incarceration and, in some jurisdictions, monetary penalties.
2. Classifying Liability
So far, we have seen that two main forms of obligations may be imposed upon intermedi
aries held to be ‘liable’, each falling within a spectrum of liability rules sharing certain
common features and underlying assumptions. A further distinction lies between liability
rules which impose ‘primary’ (or direct) liability, and those which impose ‘secondary’ (or
accessory) liability.24 Primary liability arises where all elements of wrongdoing are ful
filled by the intermediary’s own acts or omissions; conversely, secondary liability is liabili
ty which is at least partly conditioned upon proof of prima facie wrongdoing by a third
party.
Principles of primary and secondary liability reflect a consistent policy of holding inter
mediaries accountable for harms that are caused or contributed to by third parties when
the intermediary has a normatively and causally significant relationship with primary
wrongdoing, typically constituted by an assumption of responsibility for the primary
wrongdoer’s actions. This policy may partly explain the development of common law lia
bility rules involving internet intermediaries, but—as is demonstrated by the English prin
ciples of joint tortfeasorship considered later—seems unlikely to offer a sufficiently gran
ular or responsive means of regulating their obligations and business models.
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2.1 Primary Liability
A distinction lies between two ways in which the law classifies wrongdoing. First, a per
son may engage in wrongful activity by his or her own acts or omissions. Such conduct is
intended and directed by that person, who carries it out personally. This type (p. 64) of
wrong is described as ‘primary wrongdoing’ and its originating agent is the ‘primary
wrongdoer’ or tortfeasor. The consequences of such conduct are caused by the person
who engages in it; in other words, there is strict identity between actor and acts. This
form of liability typically poses little in the way of challenge to conventional understand
ings of moral agency or personal responsibility.
Breaches of primary duties owed by intermediaries are properly treated as primary

wrongs. Common to these instances is that the definition of primary liability is sufficiently
wide to accommodate acts or omissions caused by the relevant use of the intermediary’s
services. For example, an intermediary may face primary liability in its capacity as a con
tracting party (perhaps under its terms of service or a distance contract entered into with
a consumer),25 as a party that has assumed responsibility for the safety or security of its
users or their data,26 to prevent harm which is likely to occur,27 for injury caused by
something or someone that the intermediary has a duty to control,28 or under a statutory
data protection scheme.29 Other attempts to impose liability raise more difficult questions
concerning the scope of primary wrongdoing; for example, whether an act of reproducing
a copyright work which occurs when a user uploads an infringing video to a video-sharing
platform’s server is to be treated as performed by the intermediary, its user, or both.30
In some cases, the boundary between primary and secondary liability is not wholly dis
tinct. This is most apparent in areas such as copyright, where the right of communication
to the public has progressively been expanded to encompass activities which are tradi
tionally thought of as the province of secondary liability.31 The dividing line will often de
pend on how widely the relevant primary wrong is defined, and may become blurred at
the margins. However, despite (or perhaps because of) erosion in certain areas, it is sug
gested that it remains important to think of primary and secondary responsibility as dis
tinct concepts.
(p. 65) 2.2 Secondary Liability
A second form of liability is ‘secondary’ in the sense that it requires proof of at least pri
ma facie wrongdoing by a person other than the claimant or defendant. As Lord Hoff
mann explained in OBG Ltd v Allan, secondary liability is concerned with ‘principles of lia
bility for the act of another’.32 Lord Nicholls described it as ‘civil liability which is sec
ondary in the sense that it is secondary, or supplemental, to that of the third party who
committed [the primary tort]’.33 A more precise definition may be that secondary liability
is liability having as one of its conditions a finding of at least prima facie wrongdoing by a
third party. For example, liability for authorizing copyright infringement requires proof of
actual infringement by the party so authorized.34 By contrast, liability for breaching a
contract is primary, as it does not matter whether any third party has also breached it.
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Doctrines of secondary liability determine the threshold at which intermediaries may be
come legally responsible for primary wrongs perpetrated by others, even though they do
not independently satisfy the definition of primary wrongdoing. Their operation begins at
the penumbra of primary liability and ends at the limits of the connecting factors through
which secondary liability may attach. Secondary liability is thus closely related to the def
inition of a primary wrong, whose boundaries can be adjusted to encompass a wider or
narrower range of conduct within it.
Secondary liability is not harmonized within the EU and national approaches tend to
evolve alongside national doctrines of civil procedure, non-contractual and criminal re
sponsibility.35 Even within national legal systems, there is often little to unite the dis
parate instances of secondary liability doctrines, except that they express common pat
terns of attribution in private law and reflect shared policies about the proper limits of
personal responsibility. As Birks has observed, secondary liability is an ‘obscure and un
der-theorised’ part of private law,36 and is one frequently characterized by the use of un
defined, inconsistent, or misleading terminology. This significantly complicates the task of
discerning common structural principles.
In the most general terms, secondary liability may be thought of as attaching to acts or
omissions by A, the secondary actor, which (1) are not independently a primary wrong,
but either: (2) cause B, a primary wrongdoer, to engage in primary wrongdoing against C
in a recognized way (‘causative secondary wrongdoing’); or (3) establish a recognized re
lationship between A and B within the scope of which B engages in primary wrongdoing
against C (‘relational secondary wrongdoing’). Here the key questions for national legal
systems are: (i) when will harm caused by A to C fall within a recognized category (p. 66)
of duty or otherwise be sufficiently culpable to justify imposing secondary liability; and
(ii) what relationships are sufficiently proximate to justify treating A as responsible for
the actions of B? Different legal systems understandably formulate distinct answers to
these questions, and draw the line in different places.
In English law, these principles are reflected primarily in doctrines of joint tortfeasorship
in tort, equitable accessory liability, criminal accessory liability, and vicarious liability. Al
though these doctrines developed in radically different institutional, doctrinal, and histor
ical settings, some scholars have attempted to derive ‘general principles of accessory lia
bility’ from these disparate instances.37 However, with limited exceptions, English courts
have consistently rejected those attempts, and the area is instead characterized by ‘sys
tematic failure’ to explain the basis of principles which are frequently ‘unstructured, un
principled and incoherent’.38 Partly this reflects terminological confusion,39 and partly the
diverse policies, fact-specific circumstances, and remedial values that these principles up
hold in different areas of law.
If any unifying principle can be identified, it is that an intermediary may be made to an
swer for the wrongs of others where it has by its own conduct become so involved as to
‘make those wrongful acts [its] own’.40 In other words, these parallel criteria determine
whether a secondary actor has voluntarily assumed responsibility for the primary
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wrongdoer’s conduct.41 Collectively, these doctrines operate as limited exceptions to the

general principle that a claimant’s rights extend only to those who have done him wrong,
and—the obverse proposition—that a defendant’s liabilities extend only to his own wrong
doing.
2.2.1 Causative Secondary Liability

Under English law, to establish secondary liability in tort requires the claimant to show
two things. First, reflecting its ‘parasitic’ nature, there must be some primary wrongdo
ing, without which it is ‘self-evident’ that no liability can attach to other parties.42 For ex
ample, an online platform could not plausibly face secondary liability for trade mark in
fringement without a finding that there has been some primary infringement: ‘No sec
ondary liability without primary liability’, as Lord Hoffmann surmised in OBG.43
Secondly, the secondary wrongdoer’s conduct must fall within a recognized con
(p. 67)
necting factor. This specifies a threshold of causative participation and knowledge which
are, in combination, normatively sufficient for ‘concurrent fault’.44 The two most common
categories are procurement and participation in a common design. However, these are
non-exhaustive and it would, as Bankes LJ observed in The Koursk, ‘be unwise to attempt
to define the necessary amount of connection’ in the abstract.45 Despite some
confusion,46 these connecting factors are alternatives.47 Together, they identify the situa
tions when a sufficient nexus exists between secondary and primary wrongdoers to justify
extending liability to an intermediary or other third party. They are also routinely supple
mented by statutory forms of secondary liability, most notably in the case of copyright.48
2.2.1.1 Procurement
Secondary liability for procuring arises where A intentionally causes B ‘by inducement,
incitement or persuasion’ to engage in particular acts infringing C’s rights.49
Procurement of a tort is not a separate tort. Instead, it makes the secondary wrongdoer li
able for the primary wrong as a joint tortfeasor. It is necessary but insufficient that A’s
conduct must cause the primary wrong, in the sense that, ‘but for his persuasion, [the pri
mary wrong] would or might never have been committed’.50 However, merely ‘aiding’
wrongdoing is not procurement: ‘[f]acilitating the doing of an act is obviously different
from procuring the doing of the act.’51 On the basis of this case law, in L’Oréal SA v eBay
International AG, Arnold J held that eBay had not procured infringements by sellers who
offered for sale and sold counterfeit goods on its platform.52
Procurement also has a mental element, as the procurer must ‘wilfully’ have sought to in
duce the primary wrongdoer to act wrongfully. Ordinarily, A must intend B to engage in
wrongful conduct in a particular way, which requires knowledge of at least the existence
of the primary right to be interfered with and the acts to be performed, while possessing
(p. 68) any mental element necessary for primary liability.53 This requirement distinguish
es fault-based procurement liability from primary liability, which may be strict (as in the
case of most infringements of intellectual property rights and torts such as defamation).
However, it also means that procurement has little role to play in cases where an interme
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diary is passive and neutral, because it is unlikely to have induced, still less intended, the
commission of the primary wrong.
2.2.1.2 Common Design

Where an intermediary combines with others ‘to do or secure the doing of acts which con
stituted a tort’, it will be liable as a joint tortfeasor.54 This requires consensus between an
intermediary and another party to cause wrongdoing, and participation, in the sense that
both ‘are active in the furtherance of the wrong’.55 In other words, secondary liability
arises where parties ‘agree on common action, in the course of, and to further which, one
of them commits a tort.’56 Common design is a broader category than procurement, since
consensus is more easily demonstrated than inducement.57 However, simply lending as
sistance to a primary wrongdoer, without more, is insufficient to impose secondary liabili
ty.58
Like procurement, common design comprises physical and mental elements. The required
causal link is ‘concerted action to a common end’,59 rather than independent but cumula
tive or coinciding acts. In other words, there must actually be agreement, whether ex
press or implicit, which includes within its scope the tortious act or omission.60 However,
mere sale of goods does not entail such an agreement without more, as the House of
Lords held in CBS v Amstrad.61 There the seller ‘did not ask anyone’ to infringe copyright
(which would have been procurement), and there was no common design to infringe, be
cause Amstrad did not decide the purpose for which its cassette recorders should be
used; purchasers did, without any agreement between them and the vendor. Secondly,
there must be action: ‘some act in furtherance of the common design—not merely an
agreement’.62 This requires that the secondary party actually take part in the plan to
some more than ‘de minimis or trivial’ extent.63
The required mental element is that each secondary party intended that the events con
stituting the primary wrong occurred,64 and additionally meets any state of mind required
of a primary tortfeasor.65 As Davies has argued, this sets a high bar, and courts (p. 69)
have not abandoned ‘the shackles of CBS’ in subsequent decisions.66 Although intent in
cludes wilful blindness, it does not extend to reckless or negligent failures to know.67 By
analogy, only a specific subjective intention to bring about the acts constituting the wrong
will suffice.
2.2.1.3 Criminal Accessory Liability

It is also possible to impose criminal liability upon intermediaries as accessories where
they participate in criminal wrongdoing (subject to the effect of safe harbour
protection).68 In the UK, criminal accessory liability is defined both by statutory and com
mon law rules. Any accessory who ‘shall aid, abet, counsel or procure the commission of
any indictable offence … shall be liable to be tried, indicted and punished as a principal
offender’.69 The exact boundaries of secondary participation in crime are defined judicial
ly. These connecting factors are in some ways broader than those of the civil law; for ex
ample, they extend to some forms of deliberate assistance. However, they are also nar
rower, since the accessory must know or believe that the primary acts will occur. Collec
Page 10 of 38

tively they may be thought of as another example of causative secondary liability, since
they define ways in which an intermediary may contribute to the commission of criminal
wrongdoing.
2.2.2 Relational Secondary Liability

Secondary liability may also be imposed upon intermediaries who stand in some relation
ship with a primary wrongdoer. For example, vicarious liability can be used to hold em
ployers and principals liable for wrongful acts and omissions of their employees and
agents that are carried out within the scope of their employment or agency.70 In this set
ting, it is the status of the secondary actor and the proximity of its relationship with the
primary wrongdoer which justifies the imposition of liability, rather than the materiality of
her causal contribution to primary wrongdoing. Examples of non-causative relational sec
ondary conduct include: wrongdoing by B which occurs within the scope of her employ
ment or agency to A; unauthorized wrongdoing carried out by B but subsequently ratified
by A;71 and primary wrongdoing done on premises controlled by A.72
Relational attribution encompasses all tortious conduct that occurs within the scope of
the relationship. It is not restricted by medium and could in theory apply to internet
(p. 70) intermediaries where primary wrongdoing is carried out by an employee or agent.
This makes the boundaries of the employment relationship of considerable importance,

particularly in the context of online platforms which function as marketplaces for services
supplied by workers to consumers, most notably transportation, delivery, and accommo
dation services.73
3. Justifying Intermediary Liability

Intermediary liability rules often sit uneasily within the normative and conceptual struc
ture of private law. This is partly because they can constitute exceptions to the deeply in
grained principle of individual moral agency—that a person should normally be responsi
ble only for her own voluntary behaviour—a problem felt most acutely when intermedi
aries are made liable for unlawful material uploaded or transmitted by third parties over
whom they otherwise lack direct control. It is also partly because the imposition of liabili
ty upon intermediaries frequently pushes at the boundaries of established legal cate
gories.
This section provides an overview of the two main sets of justifications for imposing sec
ondary liability upon intermediaries, which are commonly invoked to overcome the prob
lem of moral agency (or at least to defend its curtailment). The first understands these li
ability rules as methods of attributing blame to secondary actors who have in some way
assumed responsibility for primary wrongdoers or their actions. This account is entirely
consistent with conventional principles of tortious responsibility, because it treats inter
mediary liability rules as reflecting the secondary actor’s own culpability. Secondly, at the
level of consequentialist analysis, secondary liability rules are justified as reducing en
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forcement costs and encouraging optimal policing by secondary actors who are likely to
be least-cost avoiders.
3.1 Normative Justifications
Modern accounts of tort law describe a system of relational directives which impose re
sponsibility for acts or omissions which interfere with the rights of others in prescribed
ways.74 Primary tortious liability reflects the defendant’s violation of an obligation not to
do wrong to the claimant; remedies are therefore normally only available against ‘the
rights violator’, for wrongdoing ‘at the hands of the defendant’.75 Thus, as Goldberg and
(p. 71) Zipursky argue, the power to exact a remedy is available against wrongdoers ‘only
if they have violated the victim’s right’.76 The availability of remedies against non-viola
tors such as intermediaries poses a challenge to an account premised on rights or civil re
course. Either victims of wrongdoing have an entitlement to relief against parties who
have not themselves infringed their rights, or—perhaps more plausibly—tort law must
embed additional rights against secondary wrongdoers. Theoretical responses to this
challenge fall under four main headings. These are not mutually exclusive categories; in
stead, they supply related but distinct explanations for extending responsibility.
3.1.1 Holding Causes of Harm Accountable

The first category points to the secondary wrongdoer’s causally significant conduct—be
that inducement, conspiracy, or some other recognized form of enablement—as justifying
personal responsibility for the consequences. As Hart and Honoré argue, to instigate or
supply the means or other assistance ‘may in a broad sense be said to give rise to a
causal relationship’.77 Gardner identifies causality—that is, actually ‘making a difference’
to the primary wrong—as the defining attribute of secondary responsibility and the essen
tial difference between primary and secondary wrongdoers: while both contribute to
wrongdoing, only secondary wrongdoers make their contribution through primary wrong
doers.78 This explains why primary wrongdoing must be a sine qua non of secondary
wrongdoing.79 Superfluous, ineffectual, or inchoate contributions are ignored. Similarly,
contributions which might have been effective, but which do not ultimately eventuate in
wrongdoing, are forgotten. Causation thus offers a normative justification for imposing
tortious liability upon a secondary party: if we are morally responsible for our voluntary
conduct, then we ought also to be held responsible for wrongful consequences that con
duct causes.80
Causation supplies a rich vocabulary with which to analyse the ‘substitutional visiting of
sins’ upon those who set others in motion.81 However, the romanticization of wrongs as
billiard balls, which follow deterministic paths of cause and effect, hides a great deal of
complexity, and fails to supply ready answers to problems involving intermediaries. First,
causation does not always appear necessary for civil secondary liability: ratification may
occur after the tortious conduct and have no effect on its occurrence; relational doctrines
may impose liability regardless of the principal’s causative role. Stevens goes further and
argues that only procuring requires a causal link82—though this ignores the causal ele
ment of authorization and common design, which may also ‘bring about’ (p. 72) harm by
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clothing the primary wrongdoer in authority or giving a plan the legitimacy of consensus.
Secondly, causation is an incomplete explanation, since merely causing or contributing to
primary harm is never sufficient for secondary liability. Instead, as Hall observes, further
principles of culpability—‘a body of value-judgments formulated in terms of personal re
sponsibility’—are needed to determine which consequences individuals should be ac
countable for causing.83 These principles (reflected in the secondary liability rules exam
ined earlier) ultimately rest on normative claims about justice, personal responsibility,
and the allocation of losses which cannot be defended using causation alone.
3.1.2 Fictional Attribution to Secondary Wrongdoers

Some scholars argue that secondary liability rules attribute actions to the secondary
wrongdoer, as expressed by the maxim qui facit per alium facit per se.83 Under this fic
tion, secondary wrongdoers are held responsible for conduct they are deemed to carry
out which infringes the claimant’s rights. Older cases lend some support to the view that
the acts of any participant in a common design are to be imputed to all other participants,
or of employee to employer.84 Some theorists have embraced this fiction to explain joint
tortfeasorship: Atiyah argues that the secondary wrongdoer has ‘effectively committed
the tort himself, and the liability is not truly vicarious’; while Stevens argues that all sec
ondary liability involves attributing actions, leading to liability ‘for the same tort’.85
This amounts to an agency-based explanation: it treats primary wrongdoers as implied

agents of secondary wrongdoers, where the ‘physical acts and state of mind of the agent
are in law ascribed to the principal.’86 This would rest on an implied manifestation of as
sent that the primary wrongdoer should act on behalf of the secondary actor insofar as he
unlawfully causes loss to others.87 However, not all secondary liability is relational: con
sider a website that procures infringement undertaken by users solely for their own bene
fit. The agency account is directly contradicted by more modern authorities, which im
pute liability for the wrong of the primary wrongdoer.88
Further, it cannot be that acts constituting primary wrongdoing are literally attributed to
joint tortfeasors; otherwise there would be two sets of tortious acts and two torts. In
stead, ‘if one party procures another to commit a tort … both are the principal wrongdo
ers of the same tort’.89 Given that there is a single tort, it must be that joint tortfeasors
are liable separately and together for the same act of wrongdoing, rather than liable for
the notional acts of two people. This explains the requirement that the secondary actor
(p. 73) must ‘make the wrong his own’. If the acts were already his own, this addition
would be superfluous. The better answer is that a claimant’s rights in tort against one
wrongdoer extend to any secondary actors who adopt the primary wrongdoer’s acts as
their own. Secondary liability rules merely recognize that we are all under sub-duties—to
avoid inducing, granting authorization, or conspiring with others to commit wrongs—as
elements inherent in primary duties.90
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3.1.3 Upholding Primary Duties

A third set of justifications argues that secondary liability rules are necessary to protect
the integrity of an underlying primary right, such as a promise, fiduciary relationship, or
property. Such rules prevent secondary actors from devaluing primary rights by removing
pre-emptive reasons for compliance. This ensures that moral lacunae do not arise where
morally culpable parties interpose ‘innocent’ intermediaries. Secondary liability is said to
‘strengthen’,91 ‘extend’,92 or ‘reinforce’ duties owed by primary actors, or to protect
‘species of property which deserve special protection’,93 thereby protecting the
claimant’s primary interest in performance. The problem with this account is that doc
trines of secondary liability operate throughout private law, so it cannot easily be said
that a single species of right is singled out for ‘special protection’. Moreover, the added
protection afforded by secondary remedies is incomplete; for example, it would not make
conceptual sense to require the secondary party to disgorge profits retained only by the
primary wrongdoer.
This set of justifications lends itself more naturally to non-monetary liability. There sec
ondary duties may be seen to arise which require the intermediary to take reasonable
steps to disable or prevent wrongdoing by others. Alternatively, there may be circum
stances in which the claimant’s fundamental rights are engaged by a third party’s wrong
doing and an injunction against an intermediary is a proportionate remedy to protect
them. In these circumstances, one may think of the resulting duty to assist claimants to
halt wrongdoing as a vehicle for protecting the claimant’s interest in ensuring protection
of his or her rights.
3.1.4 Upholding Duties Voluntarily Assumed

Finally, secondary liability may be understood in terms of the responsibility which inter
mediaries and other secondary wrongdoers assume for the actions of primary wrongdo
ers: for example, by helping, requesting, authorizing, or ratifying them—or, more perti
nently to large internet platforms, by putting themselves in a position to regulate, and in
practice regulating, such activities. To view secondary liability as premised upon an as
sumption of responsibility overcomes the basic objection that secondary liability rules in
terfere with a person’s liberty by holding them accountable for conduct (p. 74) which is
not theirs. As Bagshaw argues, there must be ‘special reasons’ for holding someone re
sponsible for third parties’ conduct.94 Attribution is justified where responsibility stems
from a person voluntarily undertaking an obligation which can properly be upheld.95
Secondary liability may actually promote the concept of individual responsibility and the
purposes of tort law since it enforces secondary wrongdoers’ duties to control primary
wrongdoers with whom they share a nexus of causation and responsibility. (In this regard,
voluntary assumption of responsibility shares considerable overlap with causation-based
justifications.)
This account must be clarified in two ways. First, it will often be the case that a sec
ondary wrongdoer wishes to avoid rather than assume responsibility for the primary
wrongdoing; accordingly, the responsibility assumed is here notional—it reflects an ex
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pectation imposed by tort law having regard to the secondary wrongdoer’s conduct,
knowledge, and control. The further riposte, that this simply involves ‘a policy of con
scripting “controllers” into the ranks of [tort] prevention authorities’,96 can be met by ob
serving that those who facilitate harm play a part in violating the claimant’s rights. While
this may in itself be insufficient for monetary liability, it justifies some level of blame. As
Cane argues, wilful disregard for primary rights justifies restricting secondary actors’
choices by imposing liability:97 the choice to be involved in others’ wrongful conduct for
feits any initial right of moral autonomy they once enjoyed. Second is the charge of circu
larity: to say that the secondary actor is liable because she owes (or has assumed) a duty
of care for the primary wrongdoer’s actions begs the question, since whether such a duty
exists is the very issue to be determined. Ultimately, the answer is a function of tort law
more generally: duties may be assumed expressly—for example, by conducting risk-tak
ing activity,98 giving advice,99 or exercising control100—or by satisfying a connecting fac
tor sufficient for secondary liability to arise.
3.2 Practical Functions
Consequentialist justifications of intermediary liability argue that it promotes efficient in

ternalization of wrongdoing, thereby deterring wrongs and lowering both individual and
overall enforcement costs. Without expressing a view on whether these distributive argu
ments are valid normative justifications for imposing liability in particular cases, at
(p. 75) least three plausible accounts may be identified: first, reducing claimants’ enforce
ment costs by conscripting least-cost avoiders; secondly, encouraging innovation; and,

thirdly, regulating communications policy. These parallel streams inform and are shaped
by the considerations of fault and personal responsibility considered previously.
3.2.1 Reducing Claimants’ Enforcement Costs

Enforcement against secondary parties is cheaper than suing primary wrongdoers if the
aggregate costs of identifying each primary wrongdoer, proving liability, and recovering
judgment outweigh the total costs of recovery against enabling intermediaries. Without a
way to target facilitators, inducers, and conspirators, claimants face the Sisyphean task
of suing every tortfeasor. Moreover, without the cooperation of secondary actors,
claimants may lack the information necessary even to identify them. To solve this prob
lem, doctrines of secondary liability create ‘gatekeeper’ regimes, allowing claimants to
exploit natural enforcement bottlenecks and reduce overall costs.101 The function of sec
ondary liability is to set default rules where high transaction costs would otherwise pre
vent optimal private ordering between claimants and wrongdoers. Such rules encourage
intermediaries to internalize the cost of negative externalities their services create—for
example, by using contractual mechanisms to allocate liability to primary wrongdoers, in
creasing service prices, or policing wrongdoing.102
This has two consequences: first, it increases the net value of primary rights, with corre
sponding increases in any social benefits which those rights were designed to incentivize
(for example, the creation of beneficial works); and secondly, it deters primary wrongdo
ing, which may reduce related social harms (for example, by increasing the quality of
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speech). The threat of liability incentivizes secondary actors to act in ways that reduce to
tal costs and increase net savings to society—in other words, to act as least-cost avoiders
—just as the tort of negligence conditions liability for accidents upon a failure to take op
timal precautions.103 In aggregate, this is said to reduce the cost of preventing and cor
recting breaches of primary obligations. Consequentialists regard secondary liability as
appropriate only when these benefits outweigh its costs, such as lost positive externali
ties caused by restricting non-tortious conduct.104 However, those costs can elude quan
tification where they produce indirect harms to ‘soft’ interests such as freedom of expres
sion, innovation, and privacy.
Insofar as it offers a descriptive account, this view is difficult to reconcile with the fault-
based requirements for causative secondary wrongdoing in English law. As Mann and Bel
zley argue, true efficiency-based secondary liability ‘should have nothing to (p. 76) do
with a normative assessment of the … intermediary’—whether the secondary actor be
haved ignorantly, dishonestly, or blamelessly—since its sole criteria are the relative costs
and effectiveness of enforcement.105 Yet even least-cost avoiders are not liable to pay a
monetary remedy unless they have intentionally induced, dishonestly assisted, autho
rized, or conspired in wrongdoing. This reflects the reasonable assumption that ignorant
intermediaries are often unable to prevent wrongdoing without high social costs; fault is,
in other words, a good heuristic for efficient loss avoidance. However, it means that Eng
lish and European law are not solely concerned with efficient detection and prevention of
primary wrongdoing; indeed, in eBay, secondary liability was refused notwithstanding the
Court’s conclusion that eBay could feasibly do more to prevent wrongdoing. Conversely,
courts have all but ignored the liability of payment and advertising intermediaries, de
spite their capacity to reduce the expected profit from online wrongdoing. Efficiency can
not account for these additional normative thresholds and therefore offers only a partial
explanation of these doctrines’ aims.
3.2.2 Encouraging Innovation

Consequentialists explain safe harbours as mechanisms for ensuring that secondary lia
bility is imposed upon intermediaries only when they are least-cost avoiders. They help ef
ficiently apportion liability between primary and secondary wrongdoers by creating in
centives for intermediaries to adopt low-cost procedures to remove material for which liti
gation is disproportionately costly, while recognizing that intermediaries are unlikely to
be least-cost avoiders unless they are actually aware of wrongdoing.106 In other words, al
though ex ante monitoring may carry excessive social costs, intermediaries are usually
more efficient at ex post removal than primary wrongdoers.107 When Parliament or courts
intervene to impose or limit secondary liability, they use a retrospective mechanism to
shift innovation and dissemination entitlements between incumbent industries and tech
nological innovators. These interventions reflect an assessment of net social welfare that
seeks to induce the inefficient party to internalize the cost of wrongdoing and so avoid fu
ture inefficient investments.108
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Safe harbours also provide bright lines and clear zones of activity within which intermedi
aries may act without fear of potential liability.109 In supplying clear guarantees of immu
nity, they reduce uncertainty and (at least in theory) facilitate investment in new tech
nologies. Further, they reduce the need for secondary actors to make decisions (p. 77)
about primary wrongdoing, which reduces the risk of pre-emptive over-enforcement.110
Intermediaries might otherwise do so because they do not internalize the benefits of tor
tious activity or incur the social costs of excessive enforcement.111 For courts, these lim
its function as liability heuristics, reducing decision costs and ultimately the cost of sup
plying internet services to consumers—all of which encourages investment and innova
tion. However, safe harbours may not go far enough, since the marginal utility derived
from servicing primary wrongdoers may lead intermediaries to abandon ‘risky sub
scribers’.112 Innovation-based accounts therefore acknowledge that the limits of sec
ondary liability embody a compromise between strict and fault-based responsibility that
reflects wider considerations of social policy and market forces.
3.2.3 Regulating Communications Policy
Finally, legal realists identify the wider role of secondary liability rules in regulating ac
cess to information. Secondary actors are natural targets for propagating communica
tions policy and enforcing rights in and against information, since they have always been
gatekeepers crucial for its reproduction and dissemination.113 Those policies serve nu
merous purposes, from preserving existing business models and protecting incumbent in
dustries, to minimizing consumer search costs.114 Secondary liability rules are one
method of regulating the interface between each generation of disseminating industries
and those with an interest in what is being disseminated. They appoint judges as techno
logical gatekeepers who assess the likely harms and benefits of new entrants’ technolo
gies, deciding whether, on balance, they should be immunized or face extended
liability.115 Following this assessment, Parliament may intervene to reverse or codify an
emergent policy.
That tort law specifies high thresholds for secondary liability reflects an underlying policy
of entrusting regulation to market forces unless the harms of new technology clearly
outweigh their benefits. Safe harbours partially codify these policies. If they are pragmat
ic compromises, this reflects the contested nature of modern communications policies.116
This approach views the limits of secondary liability as an evolving battleground of regu
lation which corrective theory cannot wholly explain; although principles of tortious re
sponsibility inform doctrines of secondary liability, they are subservient to a Kronosian cy
cle of innovation, market disruption, and regulation in which courts and Parliament peri
odically rebalance wider interests of competition and economic policy, (p. 78) human
rights, innovation, regional and international trade policy,117 and the complex incentive
structures underlying primary legal norms.
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4. Types of Wrongdoing
The preceding sections have provided a theoretical account of the distinct forms that lia
bility rules may take, the relationship between primary and secondary wrongdoing, and
the justifications for extending liability to intermediaries. Having done so, we can now
complete the cartography of intermediary liability by identifying the main areas in which
national legal systems have sought to impose duties upon intermediaries. Although this
section is, by necessity, neither comprehensive nor detailed, it aims to provide a bird’s-
eye view of the territory which will be explored elsewhere in this book, and to situate
each area within the conceptual taxonomy of primary and secondary liability developed
earlier.
4.1 Copyright Infringement
Traditional business models of copyright industries have been challenged by new forms of
online distribution enabled by peer-to-peer protocols, user-generated content platforms,
search engines, and content distribution networks. Confronted with this challenge, con
tent creators and publishers have sought to use copyright norms to regulate the activities
of intermediaries and to force them to internalize the costs of policing and preventing un
licensed exploitation of copyright works. In so doing, copyright has proven to be one of
the hardest fought battlegrounds for intermediary liability.
The predominant focus of copyright owners has been the imposition of monetary liability
upon intermediaries who were obviously complicit in, or directly responsible for, the most
egregious infringements. Into this category may be grouped cases seeking to impose lia
bility upon website directories of infringing content,118 platforms structured around in
fringing content,119 and transmission protocols that induce infringement by their users
and are overwhelmingly used to transmit infringing content.120
In most such cases, both primary and secondary liability are alleged, which reflects their
increasingly indistinct boundary in copyright law. For example, in Twentieth (p. 79) Centu
ry Fox Film Corp. v Newzbin Ltd,121 the operator of a Usenet binary storage service was
liable both for itself communicating to the public copies of the claimants’ films that had
been uploaded by third parties to Usenet newsgroups, and also for procuring and engag
ing in a common design with its paying subscribers to copy the films. It made little differ
ence to the outcome in this case whether liability was classified as primary or secondary.
A second strand of cases has sought to impose monetary liability upon intermediaries
whose business models are not structured around infringement, but whose services nev
ertheless facilitate or enable infringing transmissions to occur: chiefly, internet service
providers (ISPs) and platforms. In these cases, the difference between primary and sec
ondary liability matters a great deal. Courts have generally rejected attempts to pin sec
ondary liability (typically under the guise of authorization liability) upon ISPs and other
mere conduits, on the basis that they lack knowledge or control over the infringing trans
missions of their subscribers.122 Similarly, in The Newspaper Licensing Agency Ltd v Pub
Page 18 of 38

lic Relations Consultants Association Ltd,123 the liability of an online news aggregator
service was to be decided solely by reference to a question of primary liability: namely,
whether the service engaged in acts of reproduction in respect of news headlines, and
whether those acts satisfied the temporary copying defence.
Claims against platforms have produced more equivocal outcomes: in the United States,
litigation against YouTube was settled out of court after two first instance judgments in
which summary judgment was granted in favour of YouTube on the basis of statutory safe
harbours,124 a successful appeal against summary dismissal, and findings upon remission
that YouTube had no actual knowledge of specific infringements or any ability to control
what content was uploaded by users.125 In another decision, the online video platform
Veoh was held not to have sufficient influence over user-uploaded video content to fix it
with liability for infringement:126 ‘something more than the ability to remove or block ac
cess to materials posted on a service provider’s website’ was needed.127 Both these
claims appear to have been focused solely on secondary liability standards.
By contrast, European claims against platforms have led to divergent and inconsistent re
sults, which appear to stem from confusion concerning the proper boundaries of primary
liability rules. In the United Kingdom, an app that allowed users to upload clips taken
from the claimants’ broadcasts of cricket matches infringed copyright by reproducing and
communicating to the public a substantial part of the broadcast works, and could not rely
on the hosting or mere conduit safe harbours insofar as the clips were (p. 80) subject to
editorial review.128 In Germany, the Bundesgerichtshof did not consider it acte clair
whether a platform such as YouTube performs an act of reproduction or communication
to the public where infringing videos are uploaded by a user automatically and without
any prior editorial review by the platform operator, so referred several questions to the
CJEU.129 Previously, the Oberlandesgericht Hamburg had held that, as a host, YouTube
could avail itself of safe harbour protection irrespective of the answer to that question.130
Meanwhile, in Austria, a television broadcaster has reportedly succeeded in a claim for
infringement against YouTube on the basis that YouTube could not rely on the hosting
safe harbour.131 Such divergent and irreconcilable outcomes are the unfortunate by-prod
ucts of using primary liability concepts to conceal differing value assessments of these
platforms’ secondary responsibility.
More recently, copyright owners and their licensees have shifted their focus towards non-
monetary remedies to block or disable access to infringing material. In the United King
dom, sections 97A and 191JA of the Copyright, Designs and Patents Act 1988 create
statutory blocking remedies consequent upon a finding that a third party has infringed
the claimant’s copyright or performers’ rights, respectively. These are in substance final
injunctions which give effect to the obligation recognized by Article 8(3) of Directive
2001/29/EC.132 These remedies are discussed in more detail later in this book.133 Their
growing use reflects a perception that injunctions of this kind can be significantly more
valuable for copyright owners than traditional forms of monetary relief, despite the ab
sence of a monetary remedy. This is well illustrated by the fact that the first blocking or
der made against a British ISP, Twentieth Century Fox Film Corp. v British Telecommuni
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cations plc, related to the Newzbin platform, which (despite the liability judgment in
Newzbin) continued in operation as ‘Newzbin2’. Indeed, rather tellingly, it was only after
being blocked that, finally starved of visitor traffic and advertising revenue, the platform
eventually shut down in late 2012.134
(p. 81) 4.2 Trade Mark Infringement
Doctrines of trade mark ‘use’ present almost insurmountable difficulties to claims seeking
to impose primary liability upon intermediaries such as search engines and online adver
tising networks for third parties’ trade mark infringements. As the CJEU explained in
Google France SARL v Louis Vuitton Malletier SA, permitting third parties to select key
words which may be trade marks does not mean that a service provider itself ‘uses’ those
signs for trade mark purposes.135 In this regard, merely ‘creating the technical conditions
necessary for the use of a sign’ by a third party will not ordinarily be sufficient to lead to
primary liability: the intermediary’s role must instead ‘be examined from the angle of
rules of law other than [primary liability]’.136
In that case, the CJEU rejected claims that the claimants’ trade marks had been used by
Google in keyword advertisements placed by third parties on the defendant’s search en
gine, as such advertisements were not used by Google. However, the Court did advert to
the possibility of liability attaching under domestic secondary liability rules.137 In Eng
land, at least, this seems unlikely as a result of the combined effect of eBay and CBS, sub
ject to the possibility of non-monetary liability under Article 11 of Directive 2004/48/EC.
The relatively high thresholds of participation attaching to secondary liability under Eng
lish tort law principles mean that it is difficult to impose monetary secondary liability up
on marketplaces and platforms for third parties’ trade mark infringements.
In eBay, the claimants had argued that eBay was jointly liable for trade mark infringe
ment pursuant to a common design with registered users who sold counterfeit and paral
lel-imported versions of the claimants’ perfume and cosmetic goods. Arnold J rejected this
argument, despite expressing ‘considerable sympathy’ for the suggestion that eBay could
and should do more to prevent infringement.138 The starting position was that tort law
imposed ‘no legal duty or obligation to prevent infringement’.139 Liability as a joint tort
feasor is the consequence of failing to discharge a duty (not to procure or participate in a
tortious design), and not the source of such a duty. It followed that if eBay was under no
duty to act, then whether or not it failed to take reasonable steps was irrelevant. The
claimants’ argument was therefore circular: it assumed the duty it set out to prove. All
that could be said was that eBay’s platform facilitated acts of infringement by sellers, but
mere facilitation—even with knowledge of the existence of infringements and intent to
profit from them—was not enough to create a common design. However, the Court ex
pressly left open the possibility that eBay might be susceptible to an injunction under Ar
ticle 11.140
As Aldous LJ observed in British Telecommunications plc v One in a Million Ltd,

(p. 82)
secondary liability is ‘evolving to meet changes in methods of trade and communication
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as it had in the past.’141 However, despite the inherent flexibility of such rules, cases like
eBay suggest that secondary liability rules embed within them a default policy choice to
exonerate passive or neutral intermediaries who play no intentional role in wrongdoing,
despite knowingly facilitating it for profit, or making it a necessary or inevitable part of
their business models.
Like copyright, English courts have recognized the availability of blocking injunctions to
prevent trade mark infringement by third parties.142 While these remedies are potentially
effective to prevent sales of counterfeit goods from websites that are dedicated to adver
tising and selling such goods, they are less obviously available against general purpose
platforms such as eBay (on which are also advertised a vast array of lawful goods) due to
proportionality concerns and the technical difficulty of preventing access only to infring
ing material.
4.3 Defamation
The tort of defamation proved one of the earliest battlegrounds for intermediary liability,
as claimants sought to impose monetary liability upon hosts of Usenet newsgroups,143
online news publishers,144 social networks,145 bloggers,146 and ISPs147—with varying de
grees of success. Defamation provides a good example of primary liability being remould
ed to encompass certain categories of secondary publishers whose contribution to the
publication of defamatory material is considered sufficiently blameworthy to merit liabili
ty. This process shares many parallels with earlier developments in the law of defamation
which enabled it to accommodate previous technologies of reproduction and dissemina
tion within established patterns of primary liability (for example, telegraphy and radio).
Defamation claims involving intermediaries tend to have three focal points: prima facie li
ability, which asks whether the intermediary is to be considered a publisher at common
law; defences, such as innocent dissemination, which exempt innocent secondary publish
ers from liability; and safe harbours, which immunize passive and neutral publishers who
would otherwise be liable. The common law approach to prima facie liability has evolved
rapidly in a series of judicial decisions involving intermediaries. By (p. 83) analogy with
cases involving offline intermediaries, English courts developed a test premised upon
knowledge of defamatory material coupled with a failure to remove it within a reasonable
period, from which an inference of publication could be drawn.
Early cases reasoned that an intermediary is to be treated as a publisher (and therefore

within the scope of primary liability for defamation) where tortious material is uploaded
by a third party to facilities under its control, the intermediary has been put on notice of
the unlawfulness of the material, and fails to remove it within a reasonable period despite
having the capacity to do so.148 This reasoning relied on an analogy with older cases in
volving offline intermediaries in which consent to publication was inferred from an
occupier’s physical control over premises and its failure to remove statements displayed
there.149
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This approach was further developed in Tamiz v Google Inc., which concerned defamatory
comments posted to a blog hosted by Google’s ‘Blogger’ service. The Court of Appeal laid
down a test which asks whether the platform could ‘be inferred to have associated itself
with, or to have made itself responsible for, the continued presence of [the defamatory]
material on the blog’, after receiving notice of the material.150 The Court emphasized
Google’s own voluntary conduct—in particular, by providing a platform for publishing
blogs and comments, setting the terms and policies for the platform, and determining
whether or not to remove any posting made to it—as a potential basis for inferring partic
ipation in publication. This suggests an approach which is consistent with principles of
moral agency and individual responsibility, albeit one founded upon a failure to act after
notification.151
Conversely, in Metropolitan Schools v DesignTechnica, the claimant alleged that Google

Search was a publisher of defamatory material that appeared within automated ‘snippets’
summarizing search results for the claimant’s name. Google relied on the statutory de
fence of innocent dissemination and safe harbours, though ultimately it needed neither
since it was held not to be a publisher of the material at common law, and therefore did
not face even prima facie liability.152 Similarly, the Supreme Court of Canada has conclud
ed that a mere hyperlink is not publication of the material to which it leads.153 Australian
courts have been slower to reach the same conclusion: in Trkulja v Google LLC,154 for ex
ample, the High Court of Australia held that the question was not amenable to summary
determination, as ‘there can be no certainty as to the nature and extent of Google’s in
volvement in the compilation and publication of its search engine results without disclo
sure and evidence’.155 In so holding, the Court appears to have (p. 84) disagreed with the
proposition that a search engine can never be a common law publisher of materials in
cluded in search results or autocompleted queries.
Intermediaries who are further removed from the defamatory material are intrinsically
less likely to face primary liability. For example, in Bunt v Tilley the ISP defendant was
held incapable of being a publisher at common law despite transmitting defamatory mate
rials from third party website operators to its subscribers.156 Instrumental in this conclu
sion was the lack of any ‘assumption of general responsibility’ of an ISP for transmitted
materials, which would be necessary to impose legal responsibility.157 The same conclu
sion would appear likely to exonerate other mere conduits, without any need to rely on
defences or safe harbours.
The hosting safe harbour is most commonly relied upon by intermediaries to shield
against monetary liability for defamation.158 In McGrath v Dawkins, the retailer
Amazon.co.uk was immunized against claims of liability for allegedly defamatory reviews
and comments posted to the claimant’s book product page.159 Similarly, in Karim v
Newsquest Media Group Ltd, a claim against a website operator arising from defamatory
postings made by users was summarily dismissed on the basis of safe harbours.160
The hosting safe harbour tends to encourage over-compliance by intermediaries, since re
moval is in most cases the only realistic response to a complaint, even if a motivated de
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fendant might well be able to plead a substantive defence (such as truth or qualified privi
lege). Nevertheless, in defamation cases an informal counter-notification procedure ap
pears to be encouraged by the English courts: if an intermediary receives two competing
allegations—one claiming that material is defamatory, the other defending the lawfulness
of the material—then, faced with two irreconcilable notices, the intermediary will have
‘no possible means one way or the other to form a view as to where the truth lies.’161 It
also appears to be the case that intermediaries will not be required to accept complaints
at face value if they are defective or fail to identify facts from which unlawfulness is ap
parent.162 Such notices are ‘insufficiently precise or inadequately substantiated’ to de
prive an intermediary of the hosting safe harbour.163
The Defamation Act 2013 (UK) introduced a new defence of exhaustion, which requires
the claimant first to exhaust any remedies against a primary wrongdoer before proceed
ing against a secondary publisher, such as an intermediary. This prescribes a stricter rela
tionship of subsidiarity between primary and secondary liability for defamation: a court
cannot hear a defamation claim against a secondary party unless the court is satisfied
that it is not reasonably practicable for the claimant to proceed against the (p. 85) prima
ry party.164 In defamation claims, a successful claim against a secondary publisher (such
as a service provider) is usually treated as an example of primary liability for a second
and distinct publication, even though it is derivative from another wrong (the original
publication).
4.4 Hate Speech, Disinformation, and Harassment
Discussion continues in the United Kingdom about how best to regulate and deter online
abuse, disinformation and ‘fake news’, and cyber-bullying. Proposals have been made for
intermediaries (especially social networks and media-sharing platforms) to take a more
active role in policing content accessible on their platforms.165 A series of recent cases
from Northern Ireland demonstrates how social networks can face non-monetary liability
to remove materials which constitute unlawful harassment or otherwise interfere in an
individual’s fundamental rights. In XY v Facebook Ireland Ltd, the Court held that a Face
book page entitled ‘Keeping Our Kids Safe from Predators’ created a real risk of infring
ing the claimant sex offender’s rights to freedom from inhuman and degrading treatment
and to respect for private and family life. The Court granted an interim injunction requir
ing Facebook to remove the page in question (designated by URL), but refused to order it
to monitor the site to prevent similar material from being uploaded in the future due to
the disproportionate burden and judicial supervision that would entail.166 However, no
monetary liability was imposed on Facebook, and it appears to have been assumed with
out any discussion that Facebook owed a duty to prevent interferences with the
claimant’s rights even though it was not necessarily the publisher of the page.167
Conversely, in Muwema v Facebook Ireland Ltd, the Irish High Court made an order re
quiring Facebook to identify the author of a Facebook page, but refused injunctive relief
because Facebook could avail itself of statutory defences and because it would be
futile.168
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Intermediaries and individuals can face criminal liability under section 127(1) of the Com
munications Act 2003 (UK), which makes it an offence to publish a message or other mat
ter that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’ over a
public electronic communications network.169 Service providers have not been targeted
directly, and it is difficult to envisage a situation in which an intermediary would possess
the necessary mens rea for primary liability. In the absence of relevant primary or sec
ondary liability standards, it seems likely that some form of sui generis statutory regula
tion would be necessary if policymakers wish to impose duties onto (p. 86) platforms, so
cial networks, and other intermediaries involved in the dissemination of harmful
material.170
4.5 Breach of Regulatory Obligations
Liability can also arise pursuant to statutory provisions that impose specific duties upon
intermediaries in particular contexts. Intermediaries now face primary regulation in fields
as diverse as network neutrality,171 network and information security,172 access to online
pornography,173 and data protection.174 The consequences of breaching such a duty de
pend on the terms of the relevant legislative provisions, and range from monetary penal
ties and enforcement notices from regulators through to private claims for breach of
statutory duty. These are most conventionally thought of as forms of primary liability,
since they attach to breaches of primary duties owed by intermediaries under the terms
of the relevant legislation.
A particularly topical example concerns interception and retention of communications da

ta. Most developed countries have legislation providing for the monitoring and intercep
tion of metadata by service providers, under various conditions and procedures, to assist
in the detection and investigation of crime. Under the Investigatory Powers Act 2016
(UK), law enforcement and intelligence agencies have statutory powers to intercept ‘com
munications data’ (such as emails, instant messages, HTTP requests, and file metadata)
carried by telecommunications service providers (broadly defined to encompass, for ex
ample, telephone carriers, web hosts, ISPs, and social networking platforms). Such inter
ceptions can in most cases be authorized by executive warrant. Service providers who re
ceive a valid request are obliged to grant access to the requested data, enforceable by
means of injunction. Following the disclosure of mass interception capabilities and intelli
gence-sharing by GCHQ and other agencies, public debate has ignited about whether
these capabilities are lawful, necessary, or desirable, and what conditions and safeguards
are needed to uphold fundamental rights. In the meantime, intermediaries continue to be
subject to primary duties to store communications metadata and to provide targeted and
bulk access to law enforcement authorities.
(p. 87) 4.6 Disclosure Obligations
Most legal systems recognize an obligation to give disclosure of information needed to

bring a viable claim against an actual or suspected wrongdoer. In common law systems,
disclosure of this kind is a discretionary equitable remedy that has been developed by
Page 24 of 38

courts of equity.175 The claimant must establish: (1) an arguable case of primary wrongdo
ing by someone; (2) facilitation of that wrongdoing by the defendant from whom disclo
sure is sought; (3) that disclosure is necessary to enable some legitimate action to be tak
en against the primary wrongdoer; and (4) that disclosure would, in the circumstances,
be proportionate. Whether disclosure by an intermediary is proportionate will depend on
a number of factors, including the nature and seriousness of the primary wrongdoing,176
the strength of the claimant’s claim against the primary wrongdoer,177 whether the
intermediary’s users have a reasonable expectation that their personal data are
private,178 whether the disclosure would only affect the personal information of arguable
wrongdoers,179 whether there are any realistic alternatives, and the cost and inconve
nience of giving disclosure. Although there is no presumption either way, the decided cas
es indicate that it is exceedingly rare for disclosure to be outweighed by the fundamental
rights of an intermediary or their anonymous users.
The nature of the legal duty recognized in these cases is relatively limited, and such
claims give rise only to non-monetary secondary liability of the most nominal kind. The
basis of the duty is that, where an intermediary is ‘mixed up in’ wrongdoing, once it has
been given notice of the wrongdoing it comes under a duty to ‘stop placing [its] facilities
at the disposal of the wrongdoer’.180 However, reflecting their status as a legally innocent
party, intermediaries are, in an ordinary case, entitled to be reimbursed for their compli
ance costs and legal costs of responding to the claim for disclosure.181
Two cases suggest that the English courts are alive to the risk that blanket disclosure or
ders against ISPs may be abused by claimants for the collateral purpose of extracting
monetary settlements from subscribers accused of copyright infringement. In one
case,182 the Court commented critically on the use of disclosed information to perpetrate
a scheme in which parties were given no realistic prospect but to submit to a demand of
payment to avoid being ‘named and shamed’ as alleged downloaders of pornographic
copyright works. In another case, the Court undertook a full proportionality analysis, bal
ancing claimants’ and subscribers’ rights and the justifications for interference, before
applying the ‘ultimate balancing test’ of proportionality. However, in that case, a refusal
to extend disclosure to copyrights that had been licensed for enforcement purpos
(p. 88)
es by third party copyright owners was overturned; this did not amount to ‘sanctioning
the sale of the [subscribers’] privacy and data protection rights to the highest bidder’.183
5. Conclusions
This chapter has proposed a theoretical framework for describing liability and a taxono
my for classifying the types of liability which may be imposed upon internet intermedi
aries. Such liability may be divided into monetary and non-monetary obligations, and fur
ther classified along a spectrum of liability rules. Additionally, all forms of liability may be
described as either primary or secondary, where the latter is reserved to derivative
wrongdoers whose conduct meets certain causal, relational, and normative thresholds.
Page 25 of 38

This chapter has also considered two sets of policy justifications for imposing liability up
on intermediaries. The first seeks to bring secondary wrongdoers’ liabilities within tradi
tional accounts of moral agency and individual responsibility in private law. This chapter
argued that doctrines of secondary liability can be best explained, at least in the context
of internet intermediaries, by intermediaries’ assumption of responsibility for primary
wrongdoers. The second set of justifications uses law and economics to explain why cer
tain secondary actors may be appropriate targets of loss-shifting. Although economic
analysis provides a powerful vocabulary to describe the communications policy underly
ing many intermediary liability rules, the agnosticism of enforcement cost analysis offers
few clear answers to underlying questions of fault, responsibility, and fundamental rights.
Although our focus has been legal liability, it is also obvious that even in the absence of li
ability, intermediaries’ conduct may be important in a number of ways. First, voluntary
self-regulation now accounts for the vast majority of online content enforcement under
taken by major platforms and search engines. For example, by the end of March 2019,
Google had processed over 4 billion requests to de-index copyright-infringing URLs from
search results,184 which is many orders of magnitude greater than any conceivable claims
for injunctions or damages. Secondly, the norms and practices which intermediaries
choose to adopt, and their approach to self-enforcing those norms, in turn affect the likeli
hood of tortious material being posted, transmitted, or accessed.185 Thirdly, the possibili
ty of liability may cause intermediaries to internalize at least some of the harms caused
by their services even if they are not under a strict legal duty to do (p. 89) so.186 Finally,
the threat of more stringent future regulation may deter intermediaries from more self-in
terested behaviour, may incentivize greater self-regulation,187 and may even lead interme
diaries to develop new capabilities which are later available to be deployed in aid of legal
remedies.188 Each of these forms of conduct by intermediaries can exert a strongly regu
latory effect on internet communications, even though it can hardly be said to be a conse
quence of imposing liability.
At least under English law, the traditional tort-based thresholds for imposing secondary li
ability are rarely met by passive and neutral intermediaries, which usually lack the re
quired knowledge and intention even if they do facilitate wrongdoing. The high thresh
olds of intervention required for secondary liability suggest that these rules are unlikely
to be effective at regulating internet intermediaries alone. Limitations derived from Euro
pean law, examined elsewhere in this book, further entrench the principle that faultless
intermediaries should not face monetary liability or onerous duties to police third parties’
wrongdoing.
Despite this general aversion to imposing liability upon intermediaries and other sec
ondary actors, it is clear that intermediaries may face liability in a growing number of ar
eas. This chapter has provided an overview of the main developments from the perspec
tive of English law, which will be further analysed in specific areas elsewhere in this
book.
Page 26 of 38

Notes:
(1) Peter Birks, ‘Rights, Wrongs, and Remedies’ (2000) 20 OJLS 1, 23.
(2) Robert Stevens, Torts and Rights (OUP 2007) 58 (giving the example of an interim in
junction which prohibits lawful conduct).
(3) Oliver Wendell Holmes, The Common Law (first published 1881, 1963 Belknap Press
edn) 64. Now, of course, the constellation of statute often displaces, codifies, or abrogates
earlier common law rules.
(4) H.L.A. Hart and Tony Honoré, Causation in the Law (OUP 1985) 65.
(5) [1920] AC 956, 986 (Lord Sumner).
(6) John Mackie, Ethics: Inventing Right and Wrong (Penguin Books 1977) 208.
(7) Ronald Dworkin, Law’s Empire (HUP 1986) 174.
(8) Lloyd Weinreb, Natural Law and Justice (HUP 1987) 200. This assumption appears to
be common to many philosophical discussions of individual responsibility: see e.g. Isaiah
Berlin, Liberty (Cohen 1995) 6; Emmanuel Kant, The Metaphysics of Morals (first pub
lished 1785, 1996 CUP edn, Gregor trans.) ss. 6:223, 6:389–6:390, 152–3.
(9) Dworkin (n 7) 170.
(10) See Attorney General v Blake [2001] 1 AC 268, 278–81 (Lord Nicholls) (UK).
(11) See John v MGN Ltd [1997] QB 586, 608–9 (Sir Thomas Bingham MR) (UK) (defama
tion); Copyright, Designs and Patents Act 1988, ss. 96(1), 97–100, 103, 184(2), 191I (UK)
(copyright and performers’ right).
(12) See Jennifer Arlen and Reinier Kraakman, ‘Controlling Corporate Misconduct: An
Analysis of Corporate Liability Regimes’ (1997) 72 New York U. L. Rev. 687; Gary Becker,
‘Crime and Punishment: An Economic Approach’ (1968) 76 J. of Political Economy 169,
178–80, 184.
(13) Cf. Emmens v Pottle (1885) QBD 354 (UK) (common law defence of innocent dissemi
nation).
(14) See e.g. Directive 2000/31/EC of the European Parliament and of the Council of 17 Ju
ly 2000 on certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market [2000] OJ L178/1, Arts 13(1)(e), 14(1)(b).
(15) Doug Lichtman and Eric Posner, ‘Holding Internet Service Providers Account
able’ (2006) 14 Supreme Court Economic Rev. 221, 226.
(16) See e.g. Directive 2001/29/EC of the European Parliament and the Council of 22 May
2001 on the harmonisation of certain aspects of copyright and related rights in the infor
Page 27 of 38

mation society [2001] OJ L167/10, recital 59; Michael Rustad and Thomas Koenig, ‘Re
booting Cybertort Law’ (2005) 80 Washington L. Rev. 335, 390–1.
(17) See, inter alia, Chapters 7, 27, and 29.
(18) See, inter alia, Chapters 15 and 16.
(19) See e.g. Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354
(Ch) [106] (Arnold J) (UK); aff’d [2016] EWCA Civ 658 [52] (Kitchin LJ) (UK).
(20) Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675 [22] (Lord Sump
tion JSC) (UK) (citations omitted).
(21) Ashworth General Hospital Ltd v MGN Ltd [2002] 1 WLR 2033 [26] (Lord Woolf CJ)
(UK).
(22) See Martin Husovec, ‘Accountable, Not Liable: Injunctions against Intermediaries’,
Tilburg Law & Economics Research Paper Series, Discussion Paper No. 2016-012 (2016).
(23) Directive 2000/31/EC (n. 14) recital 45. See, in the UK, Electronic Commerce (EC Di
rective) Regulations 2002 (SI 2002/2013), reg. 20(1)(b), (2).
(24) Some judges and scholars argue that ‘accessory’ or ‘indirect’ are better labels to de
scribe this type of liability: see e.g. Paul Davies, ‘Accessory Liability: Protecting Intellectu
al Property Rights’ [2011] 4 Intellectual Property Quarterly 390, 396. ‘Secondary’ is pre
ferred here for its neutrality and ability to capture the range of standards according to
which intermediaries may be held liable.
(25) See e.g. Directive 2011/83/EU of the European Parliament and of the Council of 25
October 2011 on consumer rights [2011] OJ L304/64, Arts 8–9 (regulating distance con
tracts); Directive 2013/11/EU on alternative dispute resolution for consumer disputes,
Art. 2(a) (online dispute resolution).
(26) See e.g. William Perrin and Lorna Woods, ‘Reducing Harm in Social Media through a
Duty of Care’ (LSE Media Policy Project Blog, 8 May 2018) <https://blogs.lse.ac.uk/medi
apolicyproject/2018/05/10/reducing-harm-in-social-media-through-a-duty-of-care/>.
(27) See by analogy Dorset Yacht Co. Ltd v Home Office [1970] AC 1004, 1030 (Lord Reid)
(UK) (recognizing a duty to prevent harm which was ‘very likely’ to occur).
(28) See by analogy Haynes v Harwood [1935] 1 KB 146 (driver for bolting horse) (UK);
Newton v Edgerley [1959] 1 WLR 1031 (UK) (father for child’s use of weapon).
(29) As in the case of an intermediary who is a data controller vis-à-vis personal data. See
Regulation 2016/679/EU of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and
on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119/1
(‘GDPR’), Arts 5–6.
Page 28 of 38

(30) See e.g. National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012]
FCAFC 59 [75]–[78] (Aus.) (concluding that copies were made jointly by users and the
platform).
(31) See e.g. C-160/15 GS Media BV v Sanoma Media Netherlands BV [2016] ECLI:EU:C:
2016:644 (provision of hyperlinks to infringing content); C-527/15 Stichting Brein v Jack
Frederik Wullems [2017] ECLI:EU:C:2017:300 (sale of pre-programmed IPTV set-top box
es).
(32) [2008] 1 AC 1 [27] (Lord Hoffmann) (UK).
(33) ibid. [59] (Lord Nicholls).
(34) As there is no liability for attempted or inchoate copyright infringement, it would

plainly be insufficient for an authorization to be given which fails to lead to any infringe
ment.
(35) See e.g. French Civil Code (2016 French Ministry of Justice edn, Cartwright et al.
trans.) arts 1240–2; German Civil Code (1 October 2013) Arts 823, 1004.
(36) Peter Birks, ‘Civil Wrongs: A New World’ in Butterworths Lectures 1990–1991
(Butterworths 1992) 55, 100.
(37) See e.g. Philip Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49
Cambridge L.J. 491, 502.
(38) Claire McIvor, Third Party Liability in Tort (Hart 2006) 1.
(39) Confusingly, secondary wrongdoing can often lead to primary liability. For example,
tortious secondary liability is primary in the sense that all wrongdoers are jointly liable
for the same tort, subject to rights of contribution. Joint tortfeasors are therefore ‘princi
pals’ rather than ‘accessories’ in the strict sense. See Pey-Woan Lee, ‘Inducing Breach of
Contract, Conversion and Contract as Property’ (2009) 29 OJLS 511, 521.
(40) Sabaf SpA v Meneghetti SpA [2003] RPC 264, 284 (Peter Gibson LJ) (UK).
(41) Cf. Caparo Industries plc v Dickman [1990] 2 AC 605, 628–9 (Lord Roskill) (UK) (de
scribing a duty arising from assumptions of responsibility for the performance of an activ
ity).
(42) Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174, 1255
(Lord Walker) (UK).
(43) OBG (n. 32) [31] (Lord Hoffmann).
(44) Glanville Williams, Joint Torts and Contributory Negligence.A Study of Concurrent
Fault in Great Britain, Ireland and the Common Law Dominions (Stevens and Sons 1951)
2.
Page 29 of 38

(45) The Koursk [1924] P 140, 151 (Bankes LJ) (UK). For example, some scholars argue
that authorization or ratification of a wrong is a further basis for imposing secondary lia
bility in tort: see further Patrick Atiyah, Vicarious Liability in the Law of Torts
(Butterworths 1967) 292–4.
(46) See e.g. CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013, 1058
(Lord Templeman) (UK) (D liable if ‘he intends and procures and shares a common design
that infringement shall take place’) (emphasis added); cf. MCA Records Inc. v Charly
Records Ltd [2002] FSR 26 [424] (Chadwick LJ) (UK) (treating the test as disjunctive).
(47) Unilever plc v Gillette (UK) Ltd [1989] RPC 584, 595 (Mustill LJ) (UK).
(48) For example, in the UK statutory authorization liability extends the scope of primary
liability for copyright infringement, and impliedly abrogates common law authorization as
a connecting factor. See Copyright, Designs and Patents Act 1988 (n. 11) s. 16(2).
(49) CBS (n. 46) 1057–8 (Lord Templeman).
(50) Allen v Flood [1898] AC 1, 106–7 (Lord Watson) (UK).
(51) Belegging-en Exploitatie Maatschappij Lavender BV v Witten Industrial Diamonds Ltd

[1979] FSR 59, 65–6 (Buckley LJ) (Aus.).
(52) L’Oréal SA v eBay International AG [2009] RPC 21, 770–1 (Arnold J) (UK). See Chap
ter 20.
(53) See Atiyah (n. 45) 290–1.
(54) Fish & Fish Ltd v Sea Shepherd UK [2014] AC 1229 [21] (Lord Toulson JSC) (UK).
(55) Glanville Williams, Joint Torts and Contributory Negligence (Stevens and Sons 1951)
10.
(56) The Koursk (n. 45), 155 (Scrutton LJ).
(57) eBay (n. 52), 766–7 (Arnold J).
(58) See Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department
[2000] 1 AC 486, 500 (UK).
(59) The Koursk (n. 45), 156 (Scrutton LJ); Credit Lyonnais (n. 58), 493, 499 (Lord Woolf
MR).
(60) Unilever v Gillette (n. 47) 608 (Mustill LJ).
(61) CBS (n. 46) 1055–7 (Lord Templeman).
(62) Unilever plc v Chefaro Properties Ltd [1994] FSR 135, 138, 141 (Glidewell LJ) (UK).
(63) Sea Shepherd (n. 54) [57] (Lord Neuberger PSC).
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(64) See CBS (n. 46) 1058 (Lord Templeman).
(65) C. Evans & Son Ltd v Spritebrand Ltd [1985] 1 WLR 317, 329 (Slade LJ) (UK).
(66) See Davies (n. 24) 403.
(67) OBG (n. 32) [29]–[30] (Lord Hoffmann).
(68) See Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013), regs 17–
19, 21 (UK) (which immunize against ‘any criminal sanction’ otherwise resulting from
conduct falling within the mere conduit, caching, and hosting safe harbours).
(69) Accessories and Abettors Act 1861, s. 8 (UK). See also Serious Crime Act 2007, ss.
44–6 (UK).
(70) See generally Lister v Hesley Hall Ltd [2002] 1 AC 215 (UK).
(71) See Eastern Construction Co. v National Trust Co. [1914] AC 197 (UK).
(72) See e.g. Famous Music Corp. v Bay State Harness Racing and Breeding Association
Inc., 554 F.2d 1213 (1st Cir., 1977) (US) (imposing liability for infringing performances on
property controlled by the defendant). These cases can be viewed as breaches of a prima
ry duty to take reasonable steps to prevent land from causing harm to others: see Leakey
v National Trust for Places of Historic Interest or National Beauty [1980] QB 485, 517–19
(Megaw LJ) (UK).
(73) See e.g. Uber BV v Aslam [2018] EWCA Civ 2748 [95]–[97] (Etherton MR and Bean
LJ) (UK) (concluding that the relationship between Uber and its drivers was that of trans
portation business and workers).
(74) See e.g. John Goldberg and Benjamin Zipursky, ‘Rights and Responsibility in the Law
of Torts’ in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2012)
251, 263.
(75) ibid. 268.
(76) ibid. 273 (emphasis added).
(77) Hart and Honoré (n. 4) 388. See also John Wigmore, ‘A General Analysis of Tort-Rela
tions’ (1895) 8 Harv. L. Rev. 377, 386–7.
(78) See e.g. John Gardner, Offences and Defences: Selected Essays in the Philosophy of
Criminal Law (OUP 2006) 58, 71–4.
(79) See e.g. K.J.M. Smith, A Modern Treatise on the Law of Criminal Complicity (OUP
1991) 6–7, 66, 82.
(80) See Jerome Hall, ‘Interrelations of Criminal Law and Torts: I’ (1943) 43 Colum. L.
Rev. 753, 775–6.
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(81) See Philip James and David Brown, General Principles of the Law of Torts (4th edn,
Butterworths 1978) 356.
(82) See Stevens (n. 2) 254.
(83) See Hall (n. 80) 775–6.
(83) He who employs another to do it does it himself.
(84) See e.g. Launchbury v Morgans [1973] AC 127, 135 (Lord Wilberforce) (UK).
(85) Stevens (n. 2) 245.
(86) Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 198–9 (Lord Diplock) (UK).
(87) See Gerard McMeel, ‘Philosophical Foundations of the Law of Agency’ (2000) 116
LQR 387, 389–90, 410–11.
(88) See Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224, 229–30 (Lord
Nicholls), 245 (Baroness Hale), 248 (Lord Brown) (UK).
(89) Credit Lyonnais (n. 58) 549 (Lord Woolf MR) (emphasis added).
(90) Agency-based explanations may be more useful in cases where authority is specifical
ly delegated to a primary wrongdoer—something which internet intermediaries rarely do.
(91) Davies (n. 24) 404, 409.
(92) Hazel Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489,
668.
(93) OBG (n. 32) [27] (Lord Hoffmann).
(94) Roderick Bagshaw, ‘Inducing Breach of Contract’ in Jeremy Horder (ed.), Oxford Es
says in Jurisprudence (OUP 2000) 131, 148.
(95) See J.C. Smith and Peter Burns, ‘Donoghue v Stevenson—The Not So Golden Anniver
sary’ (1983) 46 Modern L. Rev. 147, 157; Stovin v Wise [1996] AC 923, 935 (Lord
Nicholls) (UK).
(96) K.J.M. Smith (n. 79) 44–5.
(97) Peter Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533, 546.
(98) See Harrison Moore, ‘Misfeasance and Non-Feasance in the Liability of Public Au
thorities’ (1914) 30 LQR 276, 278.
(99) See e.g. Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465, 494–5 (Lord
Morris), 487 (Lord Reid) (UK).
(100) See e.g. Dorset Yacht (n. 27) 1030 (Lord Reid).
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(101) See Reinier Kraakman, ‘Gatekeepers: The Anatomy of a Third-Party Enforcement

Strategy’ (1986) 2 J. of Law, Economics, and Organization 53, 56.
(102) Lichtman and Posner (n. 15), 229–30.
(103) See Guido Calabresi, The Costs of Accidents: A Legal & Economic Analysis (Yale U.
Press 1970); Stephen Gilles, ‘Negligence, Strict Liability and the Cheapest Cost-
Avoider’ (1992) 78 Va. L. Rev. 1291.
(104) See William Landes and Richard Posner, The Economic Structure of Intellectual
Property Law (HUP 2003), 118–19; Lichtman and Posner (n. 15) 238–9.
(105) Ronald Mann and Seth Belzley, ‘The Promise of Internet Intermediary Liabili
ty’ (2005) 47 William and Mary L. Rev. 239, 265.
(106) See Rustad and Koenig (n. 16) 391.
(107) See European Commission, Report on the Application of Directive 2004/48/EC (22
December 2010) 9.
(108) See Dotan Oliar, ‘The Copyright–Innovation Tradeoff: Property Rules, Liability Rules,
and Intentional Infliction of Harm’ (2012) 64 Stan. L. Rev. 951, 1001.
(109) See Douglas Lichtman and William Landes, ‘Indirect Liability for Copyright Infringe
ment: An Economic Perspective’ (2003) 16 Harv. J. of L. and Tech. 395, 406.
(110) See Mann and Belzley (n. 105) 274.
(111) See Assaf Hamdani, ‘Gatekeeper Liability’ (2003) 77 Southern California L. Rev. 53,
73. Cf. Lichtman and Posner (n. 15) 225–6.
(112) Neal Katyal, ‘Criminal Law in Cyberspace’ (2001) 149 U. Pa. L. Rev. 1003, 1007–8.
(113) See Tim Wu, ‘When Code Isn’t Law’ (2003) 89 Va. L. Rev. 679, 712–13.
(114) See e.g. Stacey Dogan and Mark Lemley, ‘Trademarks and Consumer Search Costs
on the Internet’ (2004) 41 Houston L. Rev. 777, 795–7, 831.
(115) See Tim Wu, ‘Copyright’s Communications Policy’ (2004) 103 Michigan L. Rev. 278,
348–9, 364.
(116) ibid. 356.
(117) See Graeme Dinwoodie, ‘The WIPO Copyright Treaty: A Transition to the Future of
International Copyright Lawmaking’ (2007) 57 Case Western Reserve L. Rev. 751, 757–8
(it might be added that intermediaries now represent a ‘fourth vector’ of balance).
(118) See e.g. Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 [42] (Bran
son J) (French J agreeing) (Aus.).
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(119) See e.g. Twentieth Century Fox Film Corp. v Newzbin Ltd [2010] EWHC 608 (Ch)
[125] (Kitchin J) (UK); [2010] FSR 21.
(120) See e.g. Metro-Goldwyn-Mayer Studios Inc. v Grokster Ltd, 545 US 913, 937 (2005)
(US).
(121) [2010] EWHC 608 (Ch) [108]–[112] (Kitchin J) (secondary liability), [125] (UK) (pri
mary liability).
(122) See e.g. Roadshow Films Pty Ltd v iiNet Ltd (No. 3) (2012) 248 CLR 42 (Aus.).
(123) [2013] RPC 19. See also C-360/13 Public Relations Consultants Association Ltd v
Newspaper Licensing Agency Ltd and Others [2014] ECLI:EU:C:2014:1195.
(124) See Digital Millennium Copyright Act 1998, s. 512(c) (US).
(125) See Viacom International Inc. v YouTube Inc., 676 F.3d 42 (2d Cir., 2012) (US); Via
com International Inc. v YouTube Inc., 07 Civ 2103 (LLC), 1:07-cv-02103-LLS, 20–3 (SD
NY 2013) (Stanton J) (US).
(126) See UMG Recordings v Shelter Capital Partners LLC, No. 10-55732, 2013 WL
1092793, 12, 19 (9th Cir., 2013) (US).
(127) Capital Records Inc. v MP3Tunes LLC, 821 F.Supp.2d 627, 635 (SDNY 2011) (US).
(128) See England and Wales Cricket Board Ltd v Tixdaq Ltd [2016] EWHC 575 (Ch)
[169]–[171] (Arnold J) (UK), though it was common ground that the app maker was jointly
liable for infringing acts committed by users: see ibid. [94] (Arnold J).
(129) See Bundesgerichtshof [Supreme Court] (BGH) LF v Google LLC & YouTube Inc. [13
September 2018] case no. I ZR 140/15 (Ger.); C-682/18 LF v Google LLC, YouTube Inc.,
YouTube LLC, Google Germany GmbH [2019] Request for a preliminary ruling from the
Bundesgerichtshof (Ger.) lodged on 6 November 2018, OJ/C 82, 2–3.
(130) See Oberlandesgericht [Higher Court] (OGH) Hamburg, GEMA v YouTube II [1 Octo
ber 2015] case no. 5 U 87/12 (Ger.).
(131) See Handelsgericht [Commercial Court] Vienna, ProSiebenSat.1 PULS 4 GmbH v

YouTube LLC [5 June 2018] (Aust.); Press release, ‘PULS 4 wins lawsuit against
YouTube’ (APA-OTS, 6 June 2018) <https://www.ots.at/presseaussendung/
OTS_20180606_OTS0177/puls-4-gewinnt-prozess-gegen-youtube>.
(132) See e.g. Twentieth Century Fox Film Corp. v British Telecommunications plc (No. 1)
[2011] EWHC 1981 (Ch) [146] (Arnold J) (UK) (‘Newzbin2’). See also Football Association
Premier League Ltd v British Telecommunications plc (No. 1) [2017] EWHC 480 (Ch)
(UK), in the context of live sports broadcasts.
(133) See Chapters 4 and 29.
Page 34 of 38

(134) See ‘Piracy Site Newzbin2 Gives up and Closes 15 Months after Block’ (BBC, 29 No
vember 2012) <https://www.bbc.co.uk/news/technology-20540853>.
(135) C-236–238/08 Google France SARL v Louis Vuitton Malletier SA [2010] ECLI:EU:C:
2010:159, paras 55–6.
(136) ibid. para. 57. The CJEU clearly had in mind national rules of secondary liability, as
indicated by the cross-reference to ‘the situations in which intermediary service providers
may be held liable pursuant to the applicable national law’. See ibid. para. 107.
(137) ibid. para. 57.
(138) eBay (n. 52) [370] (Arnold J).
(139) ibid. [375] (Arnold J).
(140) ibid. [454], [464]–[465] (Arnold J).
(141) [1998] EWCA Civ 1272; [1999] FSR 1 [486] (Aldous LJ).
(142) See e.g. Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354
(Ch) (UK); British Telecommunications plc v Cartier International AG [2018] UKSC 28;
[2018] 1 WLR 3259 (UK).
(143) See e.g. Godfrey v Demon Internet Ltd [2001] QB 201 (UK).
(144) See e.g. Dow Jones & Co. v Gutnick (2002) 210 CLR 575 [44], [51]–[52] (Gleeson CJ,
McHugh, Gummow, and Hayne JJ) (UK).
(145) See e.g. Richardson v Facebook UK Ltd [2015] EWHC 3154 (QB) [28], [48] (Warby J)
(UK) (noting obiter that the defendant could not be held to be a publisher).
(146) See e.g. Bunt v Tilley [2006] EWHC 407 (QB) (UK).
(147) See e.g. Kaschke v Gray [2010] EWHC 690 (QB) [40]–[41] (Stalden J) (UK).
(148) See Godfrey (n. 143) 209, 212 (Morland J).
(149) See Byrne v Deane [1937] 1 KB 818, 830 (Greene LJ) (UK).
(150) [2013] EWCA Civ 68 [34] (Richards LJ) (Lord Dyson MR and Sullivan LJ agreeing)
(UK).
(151) See also Pihl v Sweden App. no. 74742/14 (ECtHR, 7 February 2017) para. 37 (sug
gesting that this approach strikes an appropriate balance with claimants’ Art. 8 Conven
tion rights).
(152) [2009] EWHC 1765 (QB) [124] (Eady J) (UK).
Page 35 of 38

(153) See Crookes v Newton [2011] SCC 47 (Can); [2011] 3 SCR 269 [42] (Abella J), [48]
(McLachlin CJ and Fish J) (CA) (UK).
(154) [2018] HCA 25 [38]–[39] (Kiefel CJ, Bell, Keane, Nettle, and Gordon JJ) (Aus.).
(155) ibid. [39].
(156) See Bunt v Tilley (n. 146) [21]–[26], [37] (Eady J) (UK).
(157) ibid. [22] (Eady J); cf. McLeod v St Aubyn [1899] AC 549, 562 (Lord Morris) (UK).
(158) In many respects, the safe harbours cover similar ground—and support similar poli
cy goals—to the defence of innocent dissemination in the law of defamation.
(159) [2012] EWHC B3 (QB) (UK).
(160) [2009] EWHC 3205 (QB) [15] (Eady J) (UK).
(161) See e.g. Davison v Habeeb [2011] EWHC 3031 (QB) [66] (HHJ Parkes QC) (UK).
(162) Tamiz (n. 150) [59]–[60] (Eady J).
(163) eBay (n. 52) [122].
(164) Although the provision has not yet been litigated, it may have less application in in
ternet disputes involving anonymous primary defendants.
(165) See e.g. Digital, Culture, Media and Sport Committee, Final Report: Disinformation
and ‘Fake News’ (18 February 2019) ch 2, paras 14–40.
(166) [2012] NIQB 96 [16]–[20] (McCloskey J) (UK).
(167) See also AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 [13]–[14] (McCloskey J)
(UK).
(168) [2016] IEHC 519 [62]–[64] (Binchy J) (Ire.).
(169) See e.g. Chambers v Director of Public Prosecutions [2012] EWHC 2157 (UK).
(170) The Final Report (n. 165) recommended the creation of a statutory body responsible
for enforcing a Code of Ethics against intermediaries, including by requiring the removal
of ‘harmful and illegal content’, ibid. para. 39.
(171) See Regulation 2015/2120/EU of the European Parliament and of the Council of 25
November 2015 laying down measures concerning open internet access and amending
Directive 2002/22/EC on universal service and users’ rights relating to electronic commu
nications networks and services and Regulation (EU) No. 531/2012 on roaming on public
mobile communications networks within the Union [2016] OJ L/310.
(172) See Network and Information Systems Regulations 2018 (SI 2018/506) (UK).
Page 36 of 38

(173) See Digital Economy Act 2017, ss. 14, 20, 23 (UK).
(174) See Regulation 2016/679/EU (n. 29).
(175) See Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133
(UK).
(176) See Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 (QB)
(UK).
(177) See Clift v Clarke [2011] EWHC 1164 (QB) (UK).
(178) See Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233 [30] (Aldous LJ) (UK).
(179) See Rugby Football Union v Consolidated Information Services Ltd (formerly Via
gogo Ltd) (in liq.) [2012] 1 WLR 3333 [43], [45] (Lord Kerr JSC) (UK).
(180) ibid. [15]; Cartier (n. 142) [10] (Lord Sumption JSC) (UK).
(181) See Totalise (n. 178) [29] (Aldous LJ); see Cartier (n. 142) [12] (Lord Sumption JSC).
(182) See Media CAT Ltd v Adams (No. 2) [2011] FSR 29 [724]–[725] (HHJ Birss QC) (UK).
(183) Golden Eye (International) Ltd v Telefónica UK Ltd [2012] EWHC 723 (Ch) [146]
(Arnold J) (UK); rev’d in part [2012] EWCA Civ 1740 (UK).
(184) See Google Inc., ‘Requests to remove content due to copyright’ in Transparency Re
port (March 2019) <https://transparencyreport.google.com/copyright/overview>.
(185) See e.g. Twitter Inc., ‘The Twitter Rules’ (Help Center, 2019) <https://
help.twitter.com/en/rules-and-policies/twitter-rules>.
(186) See e.g. eBay Inc., ‘About VeRO’ (2019) <https://pages.ebay.co.uk/vero/about.html>;

Google Ireland Ltd, ‘How Content ID Works’ (YouTube Help, 2019) <https://
support.google.com/youtube/answer/2797370>.
(187) See e.g. Rob Leathern, ‘Updates to Our Ad Transparency and Authorisation
Efforts’ (Facebook Business, 29 November 2018) <https://www.facebook.com/business/
news/updates-to-our-ad-transparency-and-authorization-efforts> (noting a change to
Facebook’s advertising policies in the UK).
(188) See e.g. Lord Macdonald, ‘A Human Rights Audit of the Internet Watch
Foundation’ (November 2013) 8–9 (noting the development of the IWF blacklist in re
sponse to government pressure).
Jaani Riordan
Jaani Riordan is a barrister at 8 New Square, London. Email: jr@8newsquare.co.uk.
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A Theoretical Taxonomy of Intermediary Liability

A Theoretical Taxonomy of Intermediary Liability

Abstract and Keywords

Subscriber: National Law University Orissa; date: 23 July 2021

Subscriber: National Law University Orissa; date: 23 July 2021

(p. 59) 1.1 Moral Agency and Individual Responsibility

Subscriber: National Law University Orissa; date: 23 July 2021

‘liability’ as a binary and monolithic concept: either an intermediary is liable or it is not.

1.2 Monetary Liability

1.2.1 Strict Liability

1.2.2 Negligence-Based Standards

Subscriber: National Law University Orissa; date: 23 July 2021

1.2.3 Knowledge-Based Standards

1.3 Non-Monetary Liability

A second set of liability outcomes imposes non-monetary obligations upon intermediaries,

Subscriber: National Law University Orissa; date: 23 July 2021

Subscriber: National Law University Orissa; date: 23 July 2021

2.1 Primary Liability

Breaches of primary duties owed by intermediaries are properly treated as primary

(p. 65) 2.2 Secondary Liability

Subscriber: National Law University Orissa; date: 23 July 2021

Subscriber: National Law University Orissa; date: 23 July 2021

wrongdoer’s conduct.41 Collectively, these doctrines operate as limited exceptions to the

2.2.1 Causative Secondary Liability

Subscriber: National Law University Orissa; date: 23 July 2021

2.2.1.2 Common Design

2.2.1.3 Criminal Accessory Liability

Subscriber: National Law University Orissa; date: 23 July 2021

2.2.2 Relational Secondary Liability

This makes the boundaries of the employment relationship of considerable importance,

3. Justifying Intermediary Liability

Subscriber: National Law University Orissa; date: 23 July 2021

3.1 Normative Justifications

3.1.1 Holding Causes of Harm Accountable

Subscriber: National Law University Orissa; date: 23 July 2021

3.1.2 Fictional Attribution to Secondary Wrongdoers

This amounts to an agency-based explanation: it treats primary wrongdoers as implied

Subscriber: National Law University Orissa; date: 23 July 2021

3.1.3 Upholding Primary Duties

3.1.4 Upholding Duties Voluntarily Assumed

Subscriber: National Law University Orissa; date: 23 July 2021

3.2 Practical Functions

Consequentialist justifications of intermediary liability argue that it promotes efficient in­

ment costs by conscripting least-cost avoiders; secondly, encouraging innovation; and,

3.2.1 Reducing Claimants’ Enforcement Costs

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3.2.2 Encouraging Innovation

Subscriber: National Law University Orissa; date: 23 July 2021

3.2.3 Regulating Communications Policy

Subscriber: National Law University Orissa; date: 23 July 2021

4.1 Copyright Infringement

Subscriber: National Law University Orissa; date: 23 July 2021

Subscriber: National Law University Orissa; date: 23 July 2021

(p. 81) 4.2 Trade Mark Infringement

As Aldous LJ observed in British Telecommunications plc v One in a Million Ltd,

secondary liability is ‘evolving to meet changes in methods of trade and communication

Subscriber: National Law University Orissa; date: 23 July 2021

Early cases reasoned that an intermediary is to be treated as a publisher (and therefore

Subscriber: National Law University Orissa; date: 23 July 2021

Consequentialist justifications of intermediary liability argue that it promotes efficient in

A particularly topical example concerns interception and retention of communications da