UN Rapporteur on intermediary liability

38. One of the unique features of the Internet is that the way in which information is transmitted largely depends on intermediaries, or private corporations which provide services and platforms that facilitate online communication or transactions between third parties, including giving access to, hosting, transmitting and indexing content (Organisation for Economic Cooperation and Development, The Economic and Social Role of Internet

Intermediaries (April 2010).

 

Intermediaries thus range from Internet service providers (ISPs) to search engines, and from blogging services to online community platforms. With the advent of Web 2.0 services, individuals can now publish information without the centralized gateway of editorial review common in traditional publication formats. The range of services offered by intermediaries has flourished over the past decade, mainly due to the legal protection that they have enjoyed from liability for third-party content that Internet users send via their services.

 

However, the Special Rapporteur notes that in recent years, intermediaries’ protection from liability has been eroding.

 

39. Many States have adopted laws which impose liability upon intermediaries if they do not filter, remove or block content generated by users which is deemed illegal. For example, in Turkey, Law 5651 on the Prevention of Crime Committed in the Information Technology Domain, which was enacted in 2007, imposes new obligations on content providers, ISPs and website hosts. It also grants authority to an agency to issue administrative orders to block websites for content hosted outside of Turkey, and to take down eight broad types of unlawful content (Law 5651, art. 8), including “crimes against Ataturk”, which includes “insulting” the founder of the Republic of Turkey, Mustafa Kemal Ataturk.

 

In Thailand, the 2007 Computer Crimes Act imposes liability upon intermediaries that transmit or host third-party content and content authors themselves (Computer Crimes Act B.E.2550 (2007), sections 14 and 15). This law has been used to prosecute individuals providing online platforms, some of which are summarized in the first addendum.

 

40. In other cases, intermediary liability is imposed through privacy and data protection laws. For example, a court in Italy convicted three Google executives for violating the Italian data protection code after a video depicting cruelty to a disabled teenager was posted by a user on the Google video service. Even though the video was taken down within hours of notification by Italian law enforcers, the judge found the Google executives guilty (Reporters without Borders, “Google conviction could lead to prior control over videos posted online”, 24 February 2010).

 

The Government of China requires ISPs and web platforms to conduct surveillance on their users, and they are also held directly responsible for content posted by users (Reporters without Borders, “Enemies of the Internet,” March 2010. Available from: http://en.rsf.org/IMG/pdf/Internet_enemies.pdf, pp. 8-12).

 

Companies that fail to comply with this obligation risk losing their business licences. Holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.

 

41. Several States have sought to protect intermediaries through adopting variations on what is known as a “notice-and-takedown” regime. Such a system protects intermediaries from liability, provided that they take down unlawful material when they are made aware of its existence. For example, under the European Union-wide E-Commerce Directive, a provider of hosting services for user-generated content can avoid liability for such content if it does not have actual knowledge of illegal activity and if it expeditiously removes the

content in question when made aware of it (E/Commerce Directive, 2000/31/EC, art. 14).

 

Similarly, the Digital Millennium Copyright Act of the United States of America also provides safe harbour for intermediaries, provided that they take down the content in question promptly after notification (Digital Millennium Copyright Act, Section 512).

 

42. However, while a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behaviour on their services, it is subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown (N. Villeneuve, “Evasion Tactics: Global Online Censorship is Growing, but so are the Means to challenge it and Protect Privacy”, Index on Censorship Vol. 36 No. 4, (November 2007); Center for Democracy and Technology, “Campaign takedown troubles: how meritless copyright claims threaten

online political speech” (September 2010)).

 

Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decision-making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires

careful balancing of competing interests and consideration of defences.

 

43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf, as is the case in the Republic of Korea with the establishment of the Korea Communications Standards Commission, a quasi-State and quasi-private entity tasked to regulate online content (see A/HRC/17/27/Add.2).

 

The Special Rapporteur welcomes initiatives taken in other countries to protect intermediaries, such as the bill adopted in Chile, which provides that intermediaries are not required to prevent or remove access to user-generated content that infringes copyright laws until they are notified by a court order (Ley No. 20435, Modifica La Ley No.17.336 Sobre Propiedad Intelectual, chap. III, art. 85-L – art. 85-U, adopted on 4 May 2010).

 

A similar regime has also been proposed in Brazil(“New Draft Bill Proposition: Available for Download”, Marco Civil da Internet, 21 May 2010).

 

44. Given that Internet services are run and maintained by private companies, the private sector has gained unprecedented influence over individuals’ right to freedom of expression and access to information. Generally, companies have played an extremely positive role in facilitating the exercise of the right to freedom of opinion and expression.

 

At the same time, given the pressure exerted upon them by States, coupled with the fact that their primary motive is to generate profit rather than to respect human rights, preventing the private sector from assisting or being complicit in human rights violations of States is essential to guarantee the right to freedom of expression.

 

45. While States are the duty-bearers for human rights, private actors and business enterprises also have a responsibility to respect human rights. In this regard, the Special Rapporteur highlights the framework of “Protect, Respect and Remedy” which has been developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises.

 

The framework rests on three pillars:

(a) the duty of the State to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and

adjudication;

 

(b) the corporate responsibility to respect human rights, which means that

business enterprises should act with due diligence to avoid infringing the rights of others and to address adverse impacts with which they are involved; and

 

(c) the need for greater access by victims to effective remedy, both judicial and non-judicial(A/HRC/17/31, para. 6).

 

46. The Special Rapporteur notes that multi-stakeholder initiatives are essential to deal effectively with issues related to the Internet, and the Global Network Initiative serves as a helpful example to encourage good practice by corporations (See http://www.globalnetworkinitiative.org/principles/index.php).

 

Although only three corporations, namely Google, Microsoft, and Yahoo!, have participated in this initiative so far, the Special Rapporteur welcomes their commitment to undertake a human rights impact assessment of their decisions, including before entering a foreign market, and to ensure transparency and accountability when confronted with situations that may undermine the

rights to freedom of expression and privacy.

 

Google’s Transparency Report (See www.google.com/transparencyreport) is an outcome of such work, and provides information on Government inquiries for information about users and requests for Google to take down or censor content, as well as statistical information on traffic to Google services, such as YouTube. By illustrating traffic patterns for a given country or region, it allows users to discern any disruption in the free flow of information, whether it is due to Government censorship or a cable cut.

 

47. The Special Rapporteur commends such initiatives to enhance the responsibility of Internet intermediaries to respect human rights. To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention; be transparent to the user involved about measures taken, and where applicable to the wider public; provide, if possible, forewarning to users before the implementation of restrictive

measures; and minimize the impact of restrictions strictly to the content involved. Finally, there must be effective remedies for affected users, including the possibility of appeal through the procedures provided by the intermediary and by a competent judicial authority.

 

48. More generally, the Special Rapporteur encourages corporations to establish clear and unambiguous terms of service in line with international human rights norms and principles, increase transparency of and accountability for their activities, and continuously review the impact of their services and technologies on the right to freedom of expression of their users, as well as on the potential pitfalls involved when they are misused.