Intermediaries within online regulation
Introduction In the 1990s – the early days of the commercial internet – the term ‘disintermediation’ played a signifi cant part in academic discussions of the online world. The view was that the internet dispensed with the need for many of the traditional middlemen, allowing transactions and exchanges to occur directly between the primary actors. One commentator wrote, for example:
Similar views were expressed about many other traditional commercial and non-commercial institutions, such as the press, newsagents, book and music shops, television companies, video stores, security brokers, estate and travel agents, and many other brick-and-mortar retailers. While some of these predictions have materialised – consider, for example, the dwindling number of music and bookshops, or the direct sale of fl ight tickets by airlines – the claim of disintermediation on the internet has still failed spectacularly. The online era has not only witnessed the replacement of many traditional intermediaries by online intermediaries (such as Virgin Megastores versus Apple iTunes), but also the emergence of new intermediaries that have no obvious brick-andmortar equivalent, such as search engines or networking sites. In recent years these have in fact become major bottlenecks through which online content is now routinely accessed (and thereby centralised) – in contrast to the prior practice of site hopping via hyperlinks. 2 Alongside their greater factual importance, online intermediaries are also more and more integrated in the regulatory landscape, accompanied by much debate by academics, the judiciary and policy-makers about the rights and wrongs of making them regulatory gatekeepers. 3 Gatekeeping functions have been imposed by courts, as evidenced by a number of cases involving the online giants, such as Google, Facebook, eBay, Amazon etc, and by legislatures, as shown below. This Chapter makes no claim to comprehensiveness of coverage, but seeks to illustrate the range of regulatory involvement of intermediaries, the rationales behind it and the dangers and problems arising out of it.