Duty of Care

Author: Chris Wiersma

In legal dictionaries, the term ‘duty of care’ has been put either as a (general) principle of “prudence, meticulousness, care” or an obligation thereto (Le Docte Legal Dictionary in Four Languages, 2011)¹. It is generally defined as “having regard to interests” (id.) while it could refer to a specific and closed type of obligation, which is put only on the government as a duty to protect its members (thus, officials), the concept as defined here also has relevance for relations amongst or between individuals in both the governmental and private sphere.

As used in normal parlance, the duty would require the taking of certain measure(s), and in this context also companies or other non-governmental parties are being targeted. Thus, in terms of ‘platform responsibility’, it means to responsibly deal with the negative externalities of (commercial) practices by the internet firms and other market parties involved.

As follows from the academic literature on internet law (see e.g., Van Eijk et al., 2010, Tjong Tjin Tai et al., 2015; see also De Streel, A. et al., 2020)^{2 3 4}, which is commonly based on comparative law methods, the concept ‘duty of care’ is prone to have contested contours. While the term is formally embedded in public laws, for example as part of tort law to support a mechanism for defining negligence in private relationships, it seldom has precise definitions of its own. Nonetheless, it could be said that all (self-, co-, and the more formal) regulatory responses to issues that are identified as relevant in the law and policymaking concerning online platforms aim to dictate a ‘duty-of-care’ across both public and private entities based on public order needs. For example, based on other concepts such as trust, these duties of care can be imposed on non-governmental actors when public policy measures identify them as information fiduciaries. Similarly, in the safe harbor regimes that exist in global internet law, duties of care are established within the dynamics of interpreting the exemptions of liability provided for by the regime, such as the European Union’s e-Commerce Directive leaving the possibility for Member States to impose reasonable duties of care on service providers ‘in order to detect and prevent certain types of illegal activities’ (EU Directive on electronic commerce, 2000)⁵. An exceptional new legal measure is put forward by the proposal in the UK announced in its “Online Harms White Paper” (2019)⁶ aiming to oblige companies to protect users against certain harmful content and an online regulator to deal with internet safety/security issues, which would put a regulatory framework in place with a “mandatory duty of care”. This White Paper and the proposals have been met with several criticisms especially concerning the vagueness of the term “duty of care” that would confront users and platforms alike. It is said that such a general use of the term would bring undue uncertainty if implemented as a statutory response to online harm.

References

Symposium: Online Harms White Paper. (2019). Issue of the Journal of Media Law, Vol 11, issue 1. Available at: https://www.tandfonline.com/toc/rjml20/11/1?nav=tocList&. 

UK Government. (2019). Press release. Available at: https://www.gov.uk/government/news/uk-to-introduce-world-first-online-safety-laws.

1. Le Docte, E., Am Zehnhoff, H.-W. (2011). Le Docte : viertalig juridisch woordenboek; Dictionnaire de termes juridiques en quatre langues; Rechtswörterbuch in vier Sprachen; Legal dictionary in four languages.
2. van Eijk, T.M. van Engers, C. Wiersma, C. Jasserand W. Abel. (2010). Moving Towards Balance: A Study into Duties of Care on the Internet. Institute for Information Law Research Paper No.2012-16. Available at: https://www.ivir.nl/publicaties/download/Moving_Towards_Balance.pdf.
3. Tjong Tjin Tai, T.F.E., Koops, E.J., Op Heij, D.J.B., E Silva, K.K., Skorvánek, I. (2015). Duties of care and diligence against cybercrime. Tilburg University. Available at:  https://pure.uvt.nl/ws/portalfiles/portal/5733322/Tjong_Tjin_Tai_cs_Duties_of_Care_and_Cybercrime_2015.pdf.
4. De Streel, A. et al. (2020). Online Platforms’ Moderation of Illegal Content Online, Study for the committee on Internal Market and Consumer Protection. 1st, Policy Department for Economic, Scientific and Quality of Life Policies, European Parliament. Available athttps://d.docs.live.net/67c027bb92cc8900/%253c: https://www.europarl.europa.eu/RegData/etudes/STUD/2020/652718/IPOL_STU(2020)652718_EN.pdf.
5. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. EU Directive on electronic commerce, OJ L 178/1, 17.7.2000. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000L0031&from=en.
6. UK. (2019). Department for Digital Culture, Media & Sport and Home Office. Online Harms White Paper. Available at: https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper.