Abstract

This article is the second in a trilogy that maps the growing role of online intermediaries within the governance of the Internet and beyond. It comes as a response to recent regulatory hyperactivity, involving Internet household names—including telecom companies, search engines, networking sites and many more—on a wide spectrum of legal concerns. What many of these actors have in common is their role as communication intermediaries, and it is this role that attracts regulators and wronged private parties like bees to a honeypot. The main argument of this trilogy is that if intermediaries can be controlled and used as regulatory vehicles, so can the regulatory space in question. In light of this, the first article surveyed the legal treatment of connectivity intermediaries, ie ISPs. This second article focuses on search engines as intermediary vehicles to bring law and order into cyberspace, and the third will be devoted to hosts such as Facebook, Twitter, eBay, Wikipedia and any other platform for user-generated content. The broader theoretical background for the trilogy is provided by two very different narratives of regulation of and through technology: Spar’s regulatory cycle in response to new technological inventions and Foucault’s account of the Panopticon effect in modern regulation. This article also tests the notion of ‘neutrality’ connected to the idea of the ‘innocent’ messenger against the factual and legal reality of Google.

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