Intermediary liability

Intermediary liability is the legal doctrine governing whether — and under what conditions — a host or platform is liable for content that its users publish. The principal regimes that operating jurisdictions of an offshore-hosting operator must be read against are the US Communications Decency Act section 230 (47 USC § 230, enacted 1996), the EU E-Commerce Directive 2000/31/EC Article 14 (the “hosting safe harbour,” now replaced and extended by the Digital Services Act articles 6 to 10), and the national-law transpositions that build on each.

The substantive shape varies. Section 230 grants near-absolute immunity to a US online service provider for content that originates with another information content provider, with narrow carve-outs for federal criminal law, intellectual property, electronic communications privacy, sex-trafficking, and material that the provider has materially contributed to creating. The EU regime under the DSA (which has replaced the 2000 E-Commerce Directive surface for in-scope services since February 2024) is structured as a conditional safe-harbour: a hosting provider is not liable for unlawful content stored at the request of a user, as long as the provider does not have actual knowledge of the unlawful character of the content (or, having obtained such knowledge, acts expeditiously to remove or disable access). The DSA imposes additional obligations on very-large online platforms — content moderation transparency, systemic risk assessment, trusted-flagger access — that do not bind smaller intermediaries.

For an offshore-hosting operator the practical question is whether the safe harbour the operator’s home jurisdiction supplies is robust enough to support the editorial brand the operator wishes to host. Iceland’s intermediary-liability regime, which transposes the E-Commerce Directive under the EEA Agreement and is now subject to the DSA on the same basis, operates on a notice-of-actual-unlawfulness rather than a notice-of-allegation standard: a notice from a complainant claiming infringement does not in itself constitute the “actual knowledge” that would suspend the safe harbour, absent a court order or an objective basis for the operator to assess the claim. Switzerland, not bound by the DSA, operates under a thinner statutory surface that is nonetheless functionally similar in its allocation of risk.

The publication has set out the operator’s view on intermediary liability across the jurisdictional dossiers and in the journal articles on the topic. The substantive editorial position is that the safe-harbour regime is what makes the editorial brand viable; the operator does not host content the operator knows to be unlawful in the operating jurisdiction, and the operator does not credit notices that do not meet the local-law standard for “actual knowledge”.