Internet intermediaries' liability for online illegal hate speech

• Author: Yu Wenguang
• Pages: 32-46

FRONTIERS OF LAW IN CHINA

VOL. 13 SEPTEMBER 2018 NO. 3

DOI 10.3868/s050-007-018-0026-5

SPECIAL ISSUE

PARADIGMS OF INTERNET REGULATION IN THE EUROPEAN UNION AND CHINA

INTERNET INTERMEDIARIES’ LIABILITY FOR ONLINE ILLEGAL HATE SPEECH

YU Wenguang∗

Abstract Considering the prevalence of online hate speech and its harm and risks to the

targeted people, democratic discourse and public security, it is necessary to combat online

hate speech. For this purpose, internet intermediaries play a crucial role as new governors

of online speech. However, there is no universal definition of hate speech. Rules

concerning this vary in different countries depending on their social, ethical, legal and

religious backgrounds. The answer to the question of who can be liable for online h ate

speech also varies in different countries depending on the social, cultural, history, legal

and political backgrounds. The First Amendment, cyberliberalism and the priority of

promoting the emerging internet industry lead to the U.S. model, which offers

intermediaries wide exemptions from liability for third-party illegal content. Conversely,

the Chinese model of cyberpaternalism prefers to control online content on ideological,

political and national security grounds through indirect methods, whereas the European

Union (EU) and most European countries, including Germany, choose the middle ground

to achieve balance between restricting online illegal hate speech and the freedom of

speech as well as internet innovation. It is worth noting that there is a heated discussion on

whether intermediary liability exemptions are still suitable for the world today, and there

is a tendency in the EU to expand intermediary liability by imposing obligation on online

platforms to tackle illegal hate speech. However, these reforms are again criticized as they

could lead to erosion of the EU legal framework as well as privatization of law

enforcement through algorithmic tools. Those critical issues relate to the central questions

of whether intermediaries should be liable for user-generated illegal hate speech at all and,

if so, how should they fulfill these liabilities? Based on the analysis of the different basic

standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as

the arguments of proponents and opponents of the intermediary liability exemptions,

especially the debates over factual impracticality and legal restraints, impact on internet

innovation and the chilling effect on freedom of speech in the case that intermediaries bear

liabilities for illegal third-party content, the paper argues that the arguments for

intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era.

The outdated intermediary immunity doctrine needs to be reformed and amended.

∗ (󰉜) Dr. jur., Faculty of Law, Goethe University Frankfurt, Frankfurt am Main, Germany; Associate

Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact: yu_wenguang@

hotmail.com