An Economic Analysis of Liability of Hosting Services: Uncertainty and Incentives Online. Bruges European Economic Research Papers 37/2017

摘要

In this paper we study the uncertainty in the liability provisionsunder the E-Commerce Directive from an economic perspective . Throughthe combination of economics of cybersecurity and economic theoriesof deterrence and liability we analyse how the uncertainty in Articles12-15 of the E-Commerce Directive can affect the incentives thatInternet service providers have as regards what level of involvement tohave with data uploaded by users. By looking at the costs and benefitsof investment in security, we show how the existence of uncertainty inthe law can lead to a suboptimal level of investment. Subsequently, weexplore the consequences of changing the current liability provisionstowards either strict liability or no liability at all. We show howrationally speaking, excessively strict liability could lead to surveillanceof all online content, posing a threat to freedom of expression andexchange of information. On the other hand no liability would transferthe responsibility for a safe online space away from hosting servicestowards public authorities and civil society groups. The paper intendsto add economic analysis to the legal debate in pursue for more clarityregarding the interpretation of current rules as well as a better alignmentof incentives of hosting service providers and user preferences so as tocreate a safer and fairer online environment.