Whose liability is it anyway?

A response to this thread on Twitter.

Suppose someone posts a verbal/written/image message (through channels/publishers/navigators, detailed below) with content that is:

a) lawful but awful

b) illegal

Which of these 7 companies is/should be liable/responsible?

"is responsible" versus "should be responsible"

I've limited my answer to who is responsible, based on a post-lunch quick thought (i.e. no research or detailed consideration), under English law.

Questions as to who "should be" responsible are subjective, and should, IMHO, be approached on the basis of a careful and considered examination.

"lawful but awful"

I do not know what this means.

I'm assuming, given the reference to "lawful", that it is neither criminal (i.e. illegal) nor actionable under civil law (e.g. infringing, defamatory etc.).

In other words, "lawful content".

We've no idea why someone considers it "awful", or what the standard of "awfulness" is, whether it is an objective or subjective standard etc. So I am going to ignore that bit of the question.

Content is contained in a voicemail left by a user of mobile network 1 who has called someone on mobile network 2

In other words, the voicemail is hosted on a server operated by mobile network 2

Who is culpable? The person who leaves the voicemail.

This is, as far as I know, untested, but, if merely hosting the content establishes a liability (which would depend on the offence), there is a possible argument that, if mobile operator 2 became aware of the illegal nature of the content or circumstances from which, it must act expeditiously to remove it, else face that primary liability.

Content is on a billboard. The content was designed by an agency on behalf of a client. It is visible on a route which someone is following via a route-finding app

Who is culpable? Probably a combination of the client, the agency, and the billboard operator, depending on the offence (e.g. if there are mens rea aspects to consider).

One might make an argument, grounded in negligence, in favour of a liability on the part of the route-finding app, but I'd have thought (and, well, would hope) it would be laughed out of court. Can you imagine?

“Your planned route takes you past a sex shop, two fast food outlets, and a theatre performing ‘Lady Chatterley’s Lover’. Would you like to re-route, or leave extra time for your journey?”

A message posted on a social media site

Who is culpable? The person who posts the content.

If merely hosting the content establishes a liability (which would depend on the offence), if the social media site operator became aware of the illegal nature of the content or circumstances from which, it must act expeditiously to remove it, else face that primary liability.

Content is on a website, which is hosted by a create-a-basic-website service - found via a search engine

Who is culpable? The person who posts the content.

If merely hosting the content establishes a liability (which would depend on the offence), if the create-a-basic-website service operator became aware of the illegal nature of the content or circumstances from which, it must act expeditiously to remove it, else face that primary liability.

I'm struggling to think of an offence which a search engine might commit.


Author: neil

I'm Neil. By day, I run a law firm, decoded.legal, giving advice on Internet, telecoms, and tech law. This is my personal blog, so will be mostly about tech stuff, cycling, and other hobbies.