Intermediaries

Updates

The National Labor Relations Board (NLRB), a federal independent agency with responsibilities for enforcing US labor law, concluded that Uber drivers are independent contractors and not employees. The classification as independent contractors means that drivers have no right to form a union, bargain collectively, minimum wage, overtime pay among other traditional rights related to employment status. The NLRB’s decision serves as a recommendation for ruling in future cases in the US. The NLRB’s general counsel’s office based its decision on the fact that drivers are not subordinate to the ride-hailing platform and have “control of their cars, work schedules, and log-in locations, together with their freedom to work for competitors of Uber”. The NLRB released the advisory document on 21 May, a month after it was originally issued.​​

The 2019 Ranking Digital Rights (RDR) Corporate Accountability Index reports progress in corporate accountability but states that 'most companies still leave users in the dark about key policies and practices affecting privacy and freedom of expression'. The 2019 RDR Corporate Accountability Index analyses and compares 24 of the world's most prominent Internet and mobile ecosystem and telecommunications companies. Because the report includes products and services 'used by more than half of the world’s 4.3 billion internet users', it is a valuable indicator of the current situation of user protection. Microsoft and Telefónica lead their respective rankings.

                                                   

                                                    Source: Ranking Digital Rights

The US Supreme Court has ruled in case Apple v. Pepper, 17-204 that the consumers may proceed with antitrust claims against Apple for forcing them to buy apps exclusively from Apple, therefore monopolising the retail market for apps. Apple currently buys apps from developers and adds a 30% markup. According to the US Supreme Court opinion, Apple has to amend its terms of service so the consumers pay the price directly to the developers and the developers remit the markup to Apple. If the antitrust case of the consumers wins on merit, this would affect many other platforms functioning on similar principle, such as Google Play and Amazon, as well as the liability of intermediaries.

The UK’s National Police Chiefs’ Council lead on child protection, Simon Bailey suggests that the only way to force social media companies to pay attention and initiate steps to protect children online is a public boycott. He shared that currently he has not seen any initiatives taken by social media companies that indicate their sincerity to safeguarding children online. He added ‘Ultimately I think the only thing they will genuinely respond to is when their brand is damaged. Ultimately the financial penalties for some of the giants of this world are going to be an absolute drop in the ocean’.

 

 

The Advocate General of the Court of Justice of the European Union (CJEU) issued a legal opinion to the CJEU, affirming that Airbnb is an information society service. The legal opinion is not binding, but the court takes the advice of its advocate general in the majority of the cases. The judgment is expected later in the year. The case was referred by a court in Paris, where a French tourism association claimed that Airbnb should be submitted to the same accounting, insurance, and financial obligations as providers of real estate. The advocate general holds that Airbnb is not a real estate broker, therefore, should not have its activities ruled by French real estate laws. He believes that Airbnb provides a service to connect potential guests with hosts offering short-term accommodation ‘in a situation in which the provider of that service does not exercise control over the essential procedures for the provisions of those services’. Under the terms of the E-Commerce Directive, this practice concerns information society services. The directive allows businesses to provide information services across EU member states without restriction. This case will have significant consequences on how EU member states regulate Airbnb activities. The platform has been fighting claims from European cities, including Paris, Brussels, and Madrid, that it should be more heavily regulated. If its activities are understood as information society services by the CJEU, states in the EU will be more limited on how they can regulate the platform. In 2017, the CJEU had ruled that Uber was not only an information society service but a transportation service provider. This ruling allowed EU member states to impose restrictions on Uber’s activities.

The European Commission has sent a letter to Facebook’s head of global affairs advising the platform to rethink its rules aimed at protecting elections from foreign interference, according to the Guardian. In an attempt to tackle foreign intervention in elections, Facebook has implemented new rules requiring political advertisers to register in the country that is the target of the campaign. The EU believes that these rules will prevent European political groups from advertising cross-countries campaigns for the European elections in May. The EU recognises Facebook’s liability when foreign entities illegally interfere in national and regional elections. However, it also believes the new rules do not work in the EU and may breach EU laws.

Intermediaries play a vital role in ensuring Internet functionality. In several Internet governance areas, such as copyright infringement and spam, Internet Service Providers (ISPs) are considered key online intermediaries. In other areas, such as defamation and the so-called right to be forgotten, the responsibility extends to hosts of online content and search engines.

ISPs main involvement is at a national level in dealing with government and legal authorities, and they are often the most direct way for governments to enforce legal rules online. At a global level, some ISPs, particularly from the USA and Europe, have been active in the WSIS/WGIG/IGF processes individually and through national and regional or sector-specific business organisations such as the Information Technology Association of America (ITAA), and others. Various regional ISP associations have been set up worldwide.

Hosts of online content and search engines typically operate as conduits for content, or bridges between content and Internet users. Although headquartered in one country (some having regional headquarters), their reach and user-base is likely to be global, and as a consequence, intermediaries are often exposed to jurisdiction in multiple countries.

 

 

Intermediary liability is often discussed at IGF meetings and in other fora. The OECD includes the role of intermediaries among its 14 principles for Internet policy-making (‘Limit Internet intermediary liability’), whereas the extent of intermediary liability is often the subject of court judgments (such as the Delfi case).

The following will discuss the role and responsibility of ISPs and hosts with regards to various issues.

Copyright infringement

One of the main issues is intermediary liability for copyright infringement. The international enforcement mechanisms in the field of intellectual property have been further strengthened by making ISPs liable for hosting materials in breach of copyright, if the material is not removed upon notification of infringement. This has made the previously vague IPR regime directly enforceable in the field of the Internet.

The approach taken by the US Digital Millennium Copyright Act (DMCA) and the EU directives is to exempt the service provider from liability for the information merely transmitted or stored at the direction of the users, and demand that the service provider act upon a notice-and-take-down procedure. This solution provides some comfort to ISPs as they are safe from legal sanctions, but also potentially transforms them into content judges and only partially solves the problem, since the contested content may be posted on another website, hosted by another ISP.

Child online protection

As with all other stakeholders involved in protecting children online, ISPs and hosts are instrumental in filtering certain types of illegal content (most notably, child sexual abuse images) as soon as they become aware of it. There are generally two main processes leading to the removal of illegal content:

  1. Via notice-and-take-down measures, which are typically the first line of defence. As soon as providers, such as ISPs, domain registrars, and web hosts are alerted that their services being used to host such content, many go on to remove it or close down the user’s account, within a short period of time.
  2. Via hotline reporting, through which ISPs can be notified of illegal content by its customers, members of the public, law enforcement, or hotline organisations. ISPs generally work hand-in-hand with law enforcement to ensure that the content is verified, and that steps are taken to identify and locate the criminals.

Other technical options may help prevent illegal content from being accessed. For example, a number of intermediaries around the world, including ISPs and search engines, restrict access to lists of URLs confirmed to contain illegal content.

In the above cases, the extent of ISPs' and hosts' liabilities may vary from country to country. In some frameworks, a legal obligation is imposed; in many other cases, ISPs and hosts voluntarily develop and adopt processes to help protect children online.

Spam

ISPs are commonly seen as the primary entities involved with anti-spam initiatives. Usually, ISPs have their own initiatives for reducing spam, either through technical filtering or the introduction of anti-spam policy. The ITU’s report on spam states that ISPs should be liable for spam and proposes an anti-spam code of conduct, which should include two main provisions:

  • An ISP must prohibit its users from spamming.
  • An ISP must not peer with ISPs that do not accept a similar code of conduct.

Content policy

Under growing official pressure, ISPs, hosts and search engines are gradually, albeit reluctantly, becoming involved with content policy. In doing so, they might have to follow two possible routes. The first is to enforce government regulation. The second, based on self-regulation, is for intermediaries to decide on what is appropriate content themselves. This runs the risk of privatising content control, with ISPs taking over governments’ responsibilities.

In recent months, the courts have also imposed rules on intermediaries, most notably with respect to the right to be forgotten, and in respect of comments posted on online portals.

Right to be forgotten

In 2014, following the decision of the Spanish data protection authority to uphold a Spanish citizen’s request for the removal of the links from Google search results, the Court of Justice of the European Union imposed upon search engines the obligation to consider all right-to-be-forgotten requests.

Although many argued that this right represents only a right to be de-listed, the obligation imposed upon search engines – and not only to Google, as claimant in the case Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González – triggered major debates.

Offensive comments posted on news portal

In 2013, the European Court of Human Rights confirmed a ruling by the Estonian courts which found the news portal Delfi liable for offensive comments posted on its website. In June 2015, the Grand Chamber of ECHR confirmed the 2013 judgment: the Estonian courts’ decision was justifiable and proportionate, as the comments were extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis. (The judgment does not however concern other online spaces where third-party comments can be disseminated, such as an Internet discussion forum, a bulletin board or a social media platform.)

Each of the topics above are explained in more detail on dedicated sections: copyrightchild safetyspam, and content policy.

Events

Actors

(WIPO)

WIPO has developed, together with the

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WIPO has developed, together with the Internet Corporation for Assigned Names and Numbers, the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, WIPO’s Arbitration and Mediation Centre provides dispute resolution services for second level domain name registrations under generic top-level domains (gTLDs). The Centre also administers disputes under a specific policies adopted by some gTLD registries (e.g. .aero, .asia, .travel). In addition, the Centre offers domain name dispute resolution services for over 70 country code top-level domains (ccTLDs). WIPO has developed a ccTLD Program, with the aim to provide advice to many ccTLD registries on the establishment of dispute resolution procedures.

(CJEU)

In recent years, the CJUE has adopted important rulings on Internet intermediary liabilities.

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In recent years, the CJUE has adopted important rulings on Internet intermediary liabilities. In particular, CJUE’s case law focused for instance on the liability of a service provider in an online marketplace (McFadden v Sony Music Entertainment Germany, 2016), the liability of operators of internet marketplaces (L'Oréal v eBay, 2011), the liability of search engine operators (Google Spain case, 2014) and on the tension between data protection and online enforcement (Promusicae v Telefonica, 2008).

(OECD)

Convergence is one of the digital policy issues that the OECD is paying attention to, especially in relation t

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Convergence is one of the digital policy issues that the OECD is paying attention to, especially in relation to the challenges this phenomenon brings on traditional markets, and the need for adequate policy and regulatory frameworks to address them. In 2008, the organisation issued a set of policy guidelines for regulators to take into account when addressing challenges posed by convergence. In 2016, a report issued in preparation for the OECD Ministerial Meeting on the Digital Economy included new recommendations for policy-makers. Digital convergence issues have been on the agenda of OECD Ministerial meetings since 2008, and are also tackled in the regular OECD Digital Economy Outlook report.

(ECHR)

The European Court of Human Rights deals with privacy through the prism of Article 8 of the

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The European Court of Human Rights deals with privacy through the prism of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It adjudicates on cases brought on against Council of Europe member states accused of being in violation of one or more articles of the Convention. The ECHR has a broad view of what it deems to be protected as ‘personal data’ as any information related to a person (identified or identifiable), which falls under the ‘private life’ part of Article 8. Its most recent high-profile case on the issue found the Hungarian government in breach of Article 8, due to its broad surveillance law.

(APC)

The Association for Progressive Communications regularly participates at the UN Human Rights Council,

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The Association for Progressive Communications regularly participates at the UN Human Rights Council, to defend the freedom to use encryption technology and to communicate anonymously. One of APC’s strategic priorities for 2016-2019 is to ensure civil society actors and human rights defenders have the capacity to confidently use the Internet and ICTs, by means of privacy-enabling technologies.

(ETNO)

The European Telecommunications Network Operators' Association aims to contribute, through advocacy activities

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The European Telecommunications Network Operators' Association aims to contribute, through advocacy activities, to shaping the most appropriate regulatory and commercial environment for the telecom sector at the national and European level. As part of its activities, the association publish position papers, reports and studies on a wide range of issues related to intermediaries. ETNO also co-organise annually the ETNO-MLex Regulatory Summit, which gathers key stakeholders to discuss ongoing and future EU regulatory issues, in particular for intermediaries.

Instruments

Judgements

Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González Case - Court of Justice of the European Union (2014)

Recommendations

Other Instruments

Resources

Publications

Internet Governance Acronym Glossary (2015)
An Introduction to Internet Governance (2014)

Papers

Jurisdiction on the Internet: From Legal Arms Race to Transnational Cooperation (2016)
Encouraging the Participation of the Private Sector and the Media in the Prevention of Violence Against Women and Domestic Violence: Article 17 of the Istanbul Convention (2016) (2016)
Comparative Analysis on National Approaches to the Liability of Internet Intermediaries for Infringement of Copyright and Related Rights (2014)

Reports

One Internet (2016)
2015 In Retrospect (Vol. 4) (2016)
OECD Digital Economy Outlook 2015 (2015)
The Impact of Online Intermediaries on the EU Economy (2013)
Study on the Liability of Internet Intermediaries (2007)

GIP event reports

Realizing Rights Online: From Human Rights Discourses to Enforceable Stakeholder Responsibilities (2017)

Other resources

Harmonizing Intermediary Immunity for Modern Trade Policy (2014)

Processes

Click on the ( + ) sign to expand each day.

OECD Summit 2019

13th IGF 2018

UNCTAD 2018

WSIS Forum 2018

12th IGF 2017

WSIS Forum 2017

IGF 2016

IGF 2015

IGF 2016 Report

 

Several sessions at IGF 2016 explored who should bear responsibility for dealing with illegal or harmful online content: governments, or rather the intermediaries whose platforms are used for dissemination? While there was no definitive answer to this question, it was underlined that, unwillingly, Internet companies are increasingly taking a juridical role. Google, for example, accepts approximately half of the requests for the right to be forgot- ten. Among other – refused – requests, there are some that could open many legal Pandora-type boxes: procedural matters, basis of judgement, right to appeal, etc. (The 'Right to Be Forgotten' and Privatized Adjudication - WS28). 

 

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