Don’t shoot the {digital} messenger

About

Since the most ancient of wars it has been custom and law that you don’t harm your enemy’s messenger; how else would you hear their plans for retreat or surrender? Even today – in a world of bits and bytes not swords and fights – the law protects those messengers, those intermediaries and “middlemen” carrying the words of others. However terrible those words might be.

Europe’s E-commerce Directive and other equivalent legislation prevents a claimant from blaming an digital intermediary, such as eBay, for the wrongful actions of another. Uber and Airbnb too want to be paid for the best their drivers and hosts have to offer but not held legally responsible for any wrongdoing.

But where the words and information being carried by these intermediaries are from terrorists, policy makers and judges are inclined to make liable the messengers of these criminals’ words. Is there a logical difference between being liable for creating the digital envelope containing another’s incitement of widespread violence but not being liable for digitally shipping the means to infringe intellectual property? How do actual claimants use these and other arguments to persuade courts and law-makers that sometimes the messenger too should be liable even though they did not “make the match” as Shakespeare reminded us? And how do defendant intermediaries – some of the largest companies of all time – use arguments of freedom of speech, slippery slopes and other analogies to convince courts that they have the wrong defendant in their sights?

As Head of Technology at tier-one rated tech law firm Olswang, Clive Gringras has advised companies for his whole career on these issues: from acting for eBay in its seminal case against L’Oréal to continuing to act on intermediary liability issues for companies ranging from Airbnb to Facebook and Microsoft to Viagogo. Touching on the economic and philosophical basis for this legal doctrine, Clive will also explain the practical implications for lawyers on either side of the discussion.

As a premier-league technology lawyer, best-selling computer game coder, and author of judicially-acclaimed textbook The Laws of the Internet first commissioned when he was just twenty studying for his Magister Juris at St John’s, Oxford, Clive is an energetic, knowledgeable and passionate speaker who has engaged clients and audiences about this topic for over two decades. Whether you are interested in how a tech lawyer uses policy arguments to win clients and win-over courts, or are just an Uber passenger wondering who can be blamed for a poor experience you will find something of value in this lecture.