– Welcome back to week five. In this segment, we will review the role
of internet intermediaries on the realization and protection of freedom of expression. I will first define what
I mean by intermediaries and then I will illustrate their role in the online world and in particular in the realization of
freedom of expression. We will seek to answer
one central question. How responsible are intermediaries for online content produced
or posted by others? So, let’s begin first by your definition. The term intermediaries
in the online world is being used to refer to
the very different entities that are providing services enabling the delivery of online content to the users. One might distinguish between
several of those entities, and people are distinguishing various entities, I will just offer here a very simple one. First, we have the internet
service providers or ISP. There are those who
provide access to internet via DSL, cable modem, wireless or dedicated high speed interconnect. Example of the largest
ISPs include China Telecom which is a Chinese company, Comcast, a US company, or Airtel, an Indian company. Second, we have the so-called
web hosting providers or host, also refers to as cache. These are the companies
that rent web service space to enable their customers
to set up their own website. Thirdly, we have social media platforms, logging platforms, trading platforms. These are platforms which are
used to exchange information in viewpoint, sell or buy products. Example of such platform include Facebook, Twitter, YouTube, blog posts, eBay and so on. A distinctive feature
of social media platform is that they encourage
individuals to connect and interact with each other and to share content. And then we have search
engine, the fourth category, such as Google or Bing. They are programs and algorithms that search databases and internet sites for documents containing key words specified by users. Thy allow users to
search the world wide web for specific information which are then organized, ordered, indexed and presented to the user in a series of hyperlinks. Each of these intermediaries
may be further subdivided into various
other kind of intermediaries and in fact a range of companies, a range of intermediaries
offer different services that cut across those various services So, the notion of intermediaries is one that is very flexible, very open. From a freedom of expression standpoint, each of these intermediaries or entities are the direct influence and impact on the ability of individuals to exercise their right to freedom of
expression and information. This is not necessarily a new phenomena. The telephone company for instance, private or state-owned allow people to communicate and impart information. Clearly, though, as I have indicated throughout the lesson, a new information era has been unleashed by internet and information technology, and the various actors are associated with its integration in all aspects of social, political and economic life are very new in the history of humankind
and human society. The ubiquitous nature of internet, particularly but not only with regard to the realization of
freedom of expression raises two key questions as far as these intermediaries are concerned. First, do intermediaries have
specific responsibilities as far as free speech is concerned? We have so far largely focused on the role of the state in protecting,
respecting and fulfilling freedom of expression. Indeed, the entire human
rights system is predicated on the central role of the state. But what about the online world where non-state actors play
such a central function? Do they inherit the same responsibilities as the state? Should they also be
protecting and respecting freedom of expression? That question is the object of a short supplementary video which I
will invite you to review. But in a nutshell, the response is yes, they have responsibilities
including to protect freedom of expression and
certainly to respect it. The second question
concerns the relationship of these intermediaries with the content that is circulating online, content that you or I may have produced, shared, imparted. Of course, we remain
ultimately responsible for the nature of this content. But do the intermediaries
also have a responsibility for that content? Can it be said that
because of their function, they also produce or publish it alongside the first speaker, you or me? That question is at the heart
of many current dilemma, debates, legal and political dispute regarding online freedom of expression. Let me illustrate these
with some examples. Groups involving so-called terrorism are using social media
including Twitter or YouTube to circulate information about
their violent activities. It has also been argued that they use the online web to recruit fighters and sympathizers. Similarly, violent hate
groups use social media to propagate their hatred. The question is whether these social media are responsible for the circulation of this hateful content. Do they also add a responsibility for that content? Are they liable for the content being produced by others? And if so, how liable are they? What about copyrights or privacy online? If I post or access a song, a video, a book, a movie for which
I have no copyright, I am breaking the law. But what about the sites
where I have posted these products such as YouTube? Are they also breaking the law? In contrast to the usual
free expression system that we have explored
in the previous week, the internet is not dyadic. Meaning, it is not just about one speaker and one listener, but it involves a range of intermediaries. Between that speaker and that listener, there are a lot of
actors who are gonna play specific functions in the
technologically complex environment that is internet. And without all of those actors, the amazing potentials of internet as far as information and
expression are concerned could not be realized, that’s for sure. But do they also have responsibility for the content produced by this speaker and received by this listener? Increasingly, governments around the world have insisted that intermediaries bear some degree of
responsibility for the content that is posted or circulated through their various services. For instance, many governments request that intermediaries monitor,
filter or block content that they consider break the law. Failure to do so exposes
the intermediaries to legal consequences which may include large financial funds. That is a so-called liability
regime of intermediaries. In the remaining of this segment, I will navigate you through the jungle that constitute the intermediary liability regime of systems around the world. To paraphrase a recent article referring to it as a jungle. I will then highlight
what these regimes mean in terms of freedom of expression in the next segment. But first, let’s focus on
that keyword, liability. You must have heard it before, but what does it mean exactly? Basically, liability means
legal responsibility. You are liable for something means you are
legally responsible for it. Around the world, there’s
been roughly speaking, three different forms of liability for intermediaries. Although, as we shall
see, those archetypes are challenged and they are a number of subcategories. First, we have the strict liability model under which internet
intermediaries are liable for content produced by others, that’s the so-called third party content. This model is one used for instance in Thailand and China. And in effect, intermediaries are required to monitor all of the content that circulate through their services in order to comply with the law. If they fail to do so, they are completely and entirely responsible,
liable for the content produced by others, and they may face an number of sanctions including the withdrawal
of their business license and indeed, criminal penalties. Such a model of liability is imposed on all kind of intermediaries including the least active ones as far as content is
concerned such as ISPs. In essence, it also
means that intermediaries are basically treated as publishers, responsible for the content published and produced by others. Let me give you one example. The China Tort Liability Law of 2010 which includes an internet clause that specify that in this case, “An internet service provider shall bear “joint liability with the internet user “when it knew,” I’m insisting on that, “When it knew “that the internet user was conducting “an illegal activity by
using its internet service “but failed to take any
necessary measures.” So, the China internet law clause established a knowledge standard or test, that’s when it knew, which is a highly disputed
area of law in China and elsewhere. What does that mean, when it knew? What is required for them to know? Does it require your
complete and full monitoring of all content or just a partial one? It is clear that this approach, the ISP has to engage into
some kind of content monitoring to be protected from liability and many of them in fact engage in full content monitoring
because it can’t afford to be found guilty and liable. So, that’s one extreme form of liability for intermediaries. They are basically more or less liable for everything that is being circulated through their services. At the other end of the spectrum, we find something called
the broad immunity model which basically grants
internet intermediaries broad or possibly conditional immunity from liability for content
produced by others, and it exempts them from any kind of general requirement
to monitor the content. Under this model, intermediaries
are not publishers. They may be treated as messengers who are not responsible
for the content they carry. A little bit like the post office is responsible not for
the content of your letter but is responsible for ensuring the letter goes to its destination. Such a model can be found principally in the United States, in Singapore and in some part of the
EU regulatory regime. But, the US is the best model really for that broad immunity regime. The US Communication Decency Act states for instance, that no provider or user of an
interactive computer service shall be treated as the
publisher or speaker of any information
provided by somebody else. That’s fairly clear, there is basically very
little or no liability at all under that regime. And then we have the middle ground, In between these two extremes and the standard most
common liability regime. It is a so-called safe harbor model which grants intermediaries immunity from liability provided they act quickly, expeditiously to remove or disable access to illegal information, when they obtain actual
knowledge of such content. This model is at the heart
of the so-called notice and take-down procedures, meaning that upon notification
and a full investigation, the intermediaries must
take appropriate steps which may include taking down the content that has been flagged to their attention as being illegal. The safe harbor model usually applies to the most active of all intermediaries as far as content is concerned. Those that have direct
interaction with the content in the first place, social media platform. For instance, the e-commerce directive of the European Union hold that “A hosting
provider is not liable “for the information stored, “provided that a) the provider does not “have actual knowledge
of the illegal nature “of the activity or information, “and b) the provider, upon
obtaining such knowledge “or awareness, acts
expeditiously to remove “or to disable access to the information.” India too has adopted a safe harbor system which is slightly different
from the European one under the Information Technology act and internet intermediary including Telcom service providers,
network service providers, ISP, web hosting, all of them may be immune from liability provided they too, again, meet the conditions under the law. No person providing any
service should be liable for any third party information if he can prove that the
offence or contravention was committed without his knowledge, or that he has exercised all due diligence to prevent the commission of such offence. And you recall that when I was speaking about the strict liability system, I mentioned the knowledge standard in the China Tort Law, but as you can see, the
concept of knowledge, knowing whether or not the
content is illegal or not, that concept goes for the two forms indeed the third, as
well forms of regimes. And that’s why it is at the heart of many debates. What exactly does that
mean to be knowledgeable and what kind of measures
are intermediaries supposed to take in
order to avoid liability? So, these were in a nutshell, the theoretical models for
liability around the world. In practice, one may find a mixture of these models in the same country. For instance, China also include a notice and take-down liability approach alongside the strict liability. Okay, so possibly it’s
a moot point, but still. Europe has devised to
possibly three different legal regimes as far as
intermediaries are concerned. Depending on the nature of the issue, copyright, data protection,
right to privacy, the nature of the intermediaries, passive or mere messengers versus active or publishers. And in addition, at national level, courts in Europe have interpreted the liability regime set up by various European directives in
vastly different fashions. In a recent court
decision at regional level by the European Court for Human Rights in Delfi versus Estonia, the European court held that Delfi, one of the largest internet
portals in Estonia, “Was in a position to know about “an article to be published “to predict the nature
of the possible comments “and to take technical or manual measures “to prevent defamatory statements “from being made public.” That decision created huge shock waves throughout the intermediary community and indeed the free speech community because European court agreed with the Estonian government
that they’ll find mechanisms to address libelous and
possibly hateful comments where insufficient even though Delfi had a notice and take-down system. So, it just suggested that Delfi should prevent defamatory
and clearly unlawful statements from being
published on the website. That in essence equates Delfi with a medium, with a newspaper, with a strict liability regime. The USA, which tends to be the most consistent of all in its approach to online regulation. Also, include a different
form of liability beside the non-liability regime. It’s a safe harbor clause in the Digital Millennium Copyright Act which is, of course, limited
to copyright infringement but nevertheless is
bringing a different form of liability depending on the content and the nature of the
right that may be violated in this case, copyright. Add to all of these, an evolving and forever changing case law and what you have is a maze and a jungle all at once. To sum up, I have introduced in this segment, the role of internet intermediaries. I have focused on the various forms of legal responsibility that these intermediaries hold over the content produced by their users, the so-called liability regime, and highlighted the
diverse if not confusing global system. In the next segment, I will focus on the implication that these regimes have for the protection of freedom of expression online. Thank you.