Making intermediary Internet service providers participate in the regulatory process through tort law: a comparative analysis

A decade after the adoption of the Communications Decency Act and the Digital Millennium Copyright Act on one side of the Atlantic and the European Directive 2000/31/EC on electronic commerce on the other side, one could have expected the role of intermediary Internet service providers (IISPs) to become clearer as regards their contribution to Internet regulation and, in particular, speech regulation. Truly, at the end of the 1990s ‘self-regulation against tort law immunities’ seemed to be the appropriate path to follow in order to subsidize the Information Technology and Technology industry, especially in systems where free speech is often a superseding value. Yet, such a trade-off has progressively appeared inappropriate from the perspective of victims, namely because of the growth of IISPs' regulatory capacities. This has become even more apparent with the emergence of web 2.0 applications. However, judges have not always drawn their inspiration from the originality of the regulatory models underlying the interventions of their respective legislators. This is true both within the USA and in France. This paper thus seeks to highlight the ways that the formalism of tort law has been ‘instrumentalized’ by the judiciary to further a particular paradigm of speech regulation in cyberspace, despite the legislative recognition of alternative paradigms