Should domain administrators be held liable for illegal content on websites?

In recent years, there has been an increased focus on how to tackle unlawful website content, which concurrently has led to an increased focus on the role of intermediaries and their liability for stopping unlawful content.

Researcher Sebastian Schwemer examines in an industrial research project the recently development in Europe concerning the liability of domain registries – like DK Hostmaster, who administrates .dk domain names - regarding unlawful content.

The technical role challenged

Traditionally, the function of domain registries has been to make it possible to register a domain name, which enables users to access a website via that domain name.

This role is now being challenged because right holders are looking for new and faster methods to stop the availability of unlawful content. The liability of domain registries for website content has also been testet in several EU Member States.

The E-Commerce Directive has harmonized the European landscape for intermediary liability exemptions, but according to Schwemer, the Directive is not clear on the role of domain registries.

“It is unclear to what extent the E-Commerce Directive and its liability exemption regime embraces domain registries. When the Directive was drafted almost twenty years ago, the focus was primarily on other Internet intermediaries, such as telecommunications providers and hosting companies.”

Domain administrators should be exempted from liability

Schwemer argues in his article that domain administrators could fall under the liability exemption of Article 12 of the E-Commerce Directive in a teleological interpretation.

“The EU Directive states that intermediaries should be exempt from liability under certain conditions and in certain situations. I argue that domain administrators can be seen as intermediaries and should also be subject to the liability exemption rules. Domain administrators are even further away from the content of websites than, for example, telecom providers, as they basically provide an infrastructure that does not store, send or display the content itself.”

Schwemer, however, would like to call on an educated debate regarding the role of domain registries in order to ensure a coherent regime for their intermediary role going forward.

A clarification of domain registries’ roles and responsibilities is also timely, as it is increasingly seen that authorities and private actors in Denmark and the rest of Europe expect that domain registries should be more visible in the fight against unwanted and unlawful content on websites.

 

Sebastian Schwemer is PhD in Law from University of Copenhagen.

Schwemer's article "On Domain Registries and Website Content" is the result of an industrial research project between the Centre for Information and Innovation Law (CIIR) at the University of Copenhagen and the Danish Internet Forum (DIFO).

The full article is available in a draft version on the author’s repository

 

Sebastian Schwemer holds a two-hour seminar on the subject May, 17 2018 in Copenhagen.
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