Here’s another issue I didn’t know enough about prior to this little research excursion. What is intermediary liability? I’m familiar enough with the two words as separate entities, but not necessarily them together. I went back to the handy dandy Electronic Frontier Foundation website to get a nice, concise explanation since it seems to offer info on all things related to freedom and technology. From the EFF, I learned that the intermediaries here are communications platforms, such as Google, Facebook, Twitter, etc. For greater detail, we can look to the Information Technology Act, which defines ‘intermediary’ as follows: ““intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. The liability refers to whether or not those companies are liable for their users’ activities. These intermediaries are being pressured by governments around the world to block some of the content their users are producing in order to suppress things like privacy violations, hate speech, or dissent. One way governments go about doing so is by making the companies legally responsible for their users’ actions. This is basic censorship, impeding freedom of speech and free expression which are crucial to innovating.
Here in the US, the intermediaries have been somewhat protected under the core doctrines of section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act. But that doesn’t mean they’ll be safe here forever. Governments and law enforcement are looking to crack down and the results could be devastating (or they could be great, it’s a thin line).
One recent example of intermediary liability is going on in Thailand. The country has arbitrary practices of blocking Internet content and pursuing criminal charges against those who host it, especially content that speaks negatively about the Thai monarchy. This year sees an amendment to the 2007 Computer Crime Act (which makes intermediaries liable for prosecution without a prior court order) that exempts providers from liability only if they “can prove that they follow[ed] the instruction to restrain the dissemination of such computer data or destroy[ed] such data from a computer system as required by a Minister” (EFF, 2015). Administrations in Thailand have also known to have secretive agreements with ISPs that ensured certain Internet-wide blacklists of political content be enforced for the majority of Thai Internet users without any judicial oversight. A law is only a law if it is exclusively and universally followed. In Thailand, a ruling Thai junta that still grants themselves a general exception to obeying their own nation’s laws, has not yet returned to accepted standards of democratic governance.
On another, less depressing note, human rights organization Article 19 thinks the best way to avoid a crackdown on the intermediaries (and thus a reduction in collaboration and innovation) is to use notices. How better to present this than with bouncing balls? And who can disagree with such bright, colorful, bouncy balls combined with a British accent?!
The concept of takedown notices is another interesting one, and has inspired such things as the Takedown Project, which exists to “explore how notice and takedown procedures operate in the US, Europe, and other countries, and how these procedures resolve conflicts between copyright and freedom of expression.” The project looks to increase transparency, as “only a few providers systematically release notices. None explicitly describe their procedures. Greater transparency is needed in order to understand how this fundamental global regulatory system for online speech works and how it affects senders of notices, intermediary providers, and targets of notices.”
Other interesting reads:
Focus Area: Intermediary Liability: This site from The Center for Internet and Society at Stanford Law School provides a good overview of the topic and also links to experts on the subject, blog posts, publications, press, events, and multimedia.
“Fostering Freedom Online: the Role of Internet Intermediaries“: This is a recent case study from UNESCO that researched internet service providers, search engines, and social networking platforms across the globe and their role as intermediaries.
Intermediary Liability: Definition and related articles/links from the Center for Democracy and Technology.
Intermediary Liability in Thailand Done Right and Done Wrong: Article from the EFF discussing the issue ongoing in Thailand.
Manila Principles: A roadmap for the global community to protect online freedom of expression and innovation around the world created by an international coalition.
World Intermediary Liability Map (WILMap): The Center for Internet and Society created the World Intermediary Liability Map (WILMap), an online resource informing the public about evolving Internet regulation affecting freedom of expression and user rights worldwide. This resource is comprised of international case law, statutes, and proposed laws related to intermediary liability.