Theme I: Gatekeepers: The anatomy of a Third-Party Enforcement Strategy

Presenter I: Sun Hao, Juris Master, Class of 2018

Theme II：Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries

Presenter II: Zeng Chengyu, Juris Master, Class of 2018, Renmin University of China

Free Discussion:

Zhang Jiyu：

      The first paper overindulges in minute details, which obscures the big picture, though it serves as a useful starting point for further research. The second paper invites reflection on the proper scope of platform liability in response to technological evolution. Current legal trends push platforms to deploy better content filtering systems. Technological advances have made automated filtering viable for platforms, driven partly by its favorable cost-performance ratio. When assessing the effectiveness of such systems, focus should not rest solely on under-detection rates; false positive rates are equally critical. At present, false positives present a more acute problem than missed infringements. Accordingly, regulating false positives and designing alternative remedial mechanisms may carry greater importance.

      There is a current tendency that platforms are increasingly regarded as breeding grounds facilitating cross-regional and cross-temporal infringements. Massive cases have imposed heavy burdens on judicial systems of various countries, which expect platforms to adopt self-regulation to resolve such problems. It remains inconclusive whether this trend is positive or negative.

Ding Xiaodong:

      First, regarding the information gatekeeper theory, Kraakman’s article is classic literature. Although this paper does not directly apply it to platform liability, we can see that later scholars such as Zittrian drew on Kraakman’s theory to analyze platform liability. I think the value of this literature lies in that its various scenarios and classifications can often provide an analytical framework for many practical problems. Second, the legitimacy discussed in the second literature is actually more about platforms’ governance responsibilities rather than a pure discussion of moral and political philosophy. The author’s argument mainly emphasizes that platforms must make every effort to bear foreseeable and reasonable relevant responsibilities, instead of merely satisfying compliance obligations. In this sense, if Kraakman’s article is regarded as a rule-based analysis of platform liability, the latter literature goes beyond rules and explores platform liability from the dimension of standards. A large body of literature has analyzed rules, standards and principles. It can be found that the relationship between these legal elements becomes more complicated when it comes to platform liability, given the diversified nature of platforms and highly contextualized relevant issues. In this regard, platform liability may need to be comprehensively analyzed from the three dimensions of rules, standards and principles. On the one hand, we need to rethink platform liability beyond standards; on the other hand, we need to examine the feasibility and rationality of rule formulation in specific contexts.

Xiong Bingwan:

      The second paper adopts private law ideas and follows a moralist approach.

      Both papers discuss infringements arising outside transactional relationships, such as the release of false information that impairs business reputation. This issue can also be examined from a broader perspective. Another question is whether developing countries should adopt relatively strict rules or broad standards. For countries lacking judicial authority and legal traditions, rigid bright-line rules may be preferable to flexible standards. 

Shen Chen:

      The first paper is foundational literature concerning the gatekeeper theory. However, I have long found it hard to transplant this theory into the context of internet platforms. I think there are two main reasons. First, the third party under the gatekeeper theory is framed as a passive overseer, in other words, it only passively accepts rules. By contrast, internet platforms do not merely accept rules passively; they themselves participate in rule-making, which refers to the "platform-made law" we discussed last time. Therefore, platforms themselves shape rules, and they may even set stricter information control rules than statutory law. Thus, they are evidently more than mere gatekeepers. Second, the gatekeeper scenarios in the first paper are mostly intended to protect public interests, such as the control of illegal drugs and information disclosure in securities issuance. In contrast, discussions on platform liability mainly revolve around the protection of private interests, namely the liability that platforms shall bear when User A infringes the rights of User B. In fact, the subject relationship structure of online platforms makes the gatekeeper model inapplicable. A gatekeeper only faces a single counterpart and functions under a one-to-one interactive scenario. By contrast, platforms operate under a one-to-many structure. A special trigger (mainly user complaints in cases involving private interest infringements) is required to establish a one-to-one interaction. Accordingly, the gatekeeper theory is valid for internet platforms when it comes to safeguarding public interests, which is realized through information screening, inspection and filtering mechanisms. However, when it comes to protecting private interests, relevant discussion can only be carried out after the one-on-one relationship is formed via the red flag doctrine as an intermediate link.

Editor:Xu Liuya

Reviewer: Zhu Peiwen