Skip to main content
Presented to you through Paradigm Publishing Services

Bristol University Press

Visit our Partner Page See all our books
Chapter
Licensed
Unlicensed Requires Authentication

6 The Policy Debate: Uniqueness of Harm from NCII

Abstract

This chapter defends platforms’ strict liability for NCII by pointing to the special policy considerations supporting such strict liability. I defend here a claim for ‘NCII exceptionalism’ so even if one believes that NTD (or possibly stay down) is an appropriate regime for other content, such as defamation and copyright, strict liability, and filtering duties are required and justified for NCII. The case is simple: on the one hand, the harm from NCII is serious and irreparable in a way that the harm from defamation and let alone from copyright is not. It is also systemic and gendered and a type of sexual abuse. On the other hand, the costs of a filtering duty backed by strict liability are much less significant in comparison to cases of copyright and defamation, in terms of both chilling valuable speech and the financial costs of sorting lawful images from unlawful ones.

The argument defended in this chapter both supports a vertical approach to intermediary liability for user content, and criticizes the ‘inverted hierarchy’, entrenched in US law and emerging in EU law, according to which internet intermediaries are more accountable for copyright infringing content than for breach of sexual privacy.

Abstract

This chapter defends platforms’ strict liability for NCII by pointing to the special policy considerations supporting such strict liability. I defend here a claim for ‘NCII exceptionalism’ so even if one believes that NTD (or possibly stay down) is an appropriate regime for other content, such as defamation and copyright, strict liability, and filtering duties are required and justified for NCII. The case is simple: on the one hand, the harm from NCII is serious and irreparable in a way that the harm from defamation and let alone from copyright is not. It is also systemic and gendered and a type of sexual abuse. On the other hand, the costs of a filtering duty backed by strict liability are much less significant in comparison to cases of copyright and defamation, in terms of both chilling valuable speech and the financial costs of sorting lawful images from unlawful ones.

The argument defended in this chapter both supports a vertical approach to intermediary liability for user content, and criticizes the ‘inverted hierarchy’, entrenched in US law and emerging in EU law, according to which internet intermediaries are more accountable for copyright infringing content than for breach of sexual privacy.

Chapters in this book

  1. Front Matter i
  2. Contents vii
  3. Acknowledgements viii
  4. Series Editor’s Preface x
  5. Introduction 1
  6. Setting the Ground: The Intermediary Liability Debate and Framing Issues 13
  7. First Principles and Occupiers’ Liability: The Case against Immunity 28
  8. Property and Privacy: The Case for Strict Liability 54
  9. Property and Privacy: Objections and Possible Extensions 72
  10. The Policy Debate: Uniqueness of Harm from NCII 86
  11. The Policy Debate: Freedom of Expression and Financial Costs of Filtering 110
  12. The Easy Case for Viewers’ Liability: Child Pornography and Apportionment of Liability 132
  13. Viewers’ Liability: Intention and Objective Fault 157
  14. The Power of Property: Strict Liability for Viewing NCII 175
  15. Scope of Liability for Breaches of Privacy 194
  16. Is Suing Viewers Practicable? 214
  17. Conclusion 224
  18. References 227
  19. Index 256
Egalitarian Digital Privacy
This chapter is in the book Egalitarian Digital Privacy
https://doi.org/10.56687/9781529214031-008

Chapters in this book

  1. Front Matter i
  2. Contents vii
  3. Acknowledgements viii
  4. Series Editor’s Preface x
  5. Introduction 1
  6. Setting the Ground: The Intermediary Liability Debate and Framing Issues 13
  7. First Principles and Occupiers’ Liability: The Case against Immunity 28
  8. Property and Privacy: The Case for Strict Liability 54
  9. Property and Privacy: Objections and Possible Extensions 72
  10. The Policy Debate: Uniqueness of Harm from NCII 86
  11. The Policy Debate: Freedom of Expression and Financial Costs of Filtering 110
  12. The Easy Case for Viewers’ Liability: Child Pornography and Apportionment of Liability 132
  13. Viewers’ Liability: Intention and Objective Fault 157
  14. The Power of Property: Strict Liability for Viewing NCII 175
  15. Scope of Liability for Breaches of Privacy 194
  16. Is Suing Viewers Practicable? 214
  17. Conclusion 224
  18. References 227
  19. Index 256
Downloaded on 10.5.2026 from https://www.degruyterbrill.com/document/doi/10.56687/9781529214031-008/html?lang=en
Scroll to top button