Liability of online information providers—towards a global solution

Abstract

The term ‘online information provider’ spans a range from traditional publishers moving their activities from paper to electronic publishing, through aggregators and online directories, to ISPs. These entities have become a core element of the global communications infrastructure. Because their activities are necessarily global (given the working of the Internet technologies) and under the existing laws of most countries publication takes place where an end-user receives information, online information providers face a significant increase in liability risk compared to offline publishers. The scale of this risk is so large that it is a potential disincentive to their useful activities. The article proposes to control these liability risks through an international convention, the draft text of which is set out with commentary that identifies the principles underlying the drafting and the sources of its provisions. The fundamental principle on which the draft convention is based is that online information providers should only be exposed to publication liability risks in those jurisdictions where they are expressly aware that they incur those risks, and this is achieved primarily through defining closely the place and time of publication, while including provisions to protect national interests and the interests of those who suffer damage because of the publication.