Intermediaries

Updates

Major European telecoms companies are providing lower levels of digital rights such as transparency and consumer protections to countries in Africa than in European markets, according to Slate's comment on a new study, Droits Numeriques en Afrique Subsaharienne: Analyses des Pratiques D'Orange au Senegal et Safaricom au Kenya (in French), by Internet Sans Frontières (Internet Without Borders). Daniel Finnan of RFI notes that the research report assesses respect for freedom of expression and privacy, 'concluding that users in Europe are treated differently to those in sub-Saharan Africa'. Finnan includes an interview Julie Owono, Executive Director of Internet without Borders, which details specific information from the study about how Safaricom and Orange operate differently in Europe than they do in Africa. The interview covers points about terms of service, Internet shutdowns, and privacy considerations, among others.

Crime Russia reports that YouTube and Instagram are facing possible blocking as '14 photos from Instagram of Rybka and video published on YouTube entered the register of prohibited information based on the decision of the court and Roskomnadzor'. Hannah Levintova reports in Mother Jones that Russia is trying to bury the video. Levintova says that the video, published by Russian opposition activist Alexei Navalny, links Russian Deputy Prime Minister Sergey Prikhodko of facilitating the alleged link between the Kremlin, Oleg Deripaska, and the Trump campaign. A court injunction was issued, requiring takedown of six video and 14 Instagram posts, finding that the posts violated Deripaska's right to privacy. According to the BBC, 'If neither Mr Navalny nor the US tech firms involved delete or otherwise block local access to the imagery by the end of the day, then Russia's ISPs will be required to take action themselves.' The BBC goes on to quote a spokeswoman for the Russian Association for Electronic Communications as saying 'It's impossible for internet providers to block certain pages on Instagram and YouTube.' This could result in blocking local access to the social networks.

Sean Fine, justice writer for the Globe and Mail reports that the Canadian Supreme Court will not require that the Canadian Broadcasting Corporation (CBC) unpublish (remove) an article from its website, even though a ban on the reported victim's identity was put in place. The two-year debate, which includes an order of contempt against the CBC, involves questions of freedom of expression and privacy, often referred to together as the right to be forgotten. Iwona Kuklicz, of the Alberta Justice Department, filed an appeal to this ruling noting that 'Every media organization, and every individual with an online platform, has been handed an incentive to rush to publish information before a ban can be issued.' 

In a 2016 article, also in the Globe and Mail, Silvia Stead, Globe and Public Mail Editor, wrote that 'We’re not in the unpublishing business,' noting that '[...] the public has an expectation that the archives can be viewed and are true to their original form. In many ways, they are part of history.' She concluded her piece saying 'Years ago, the paper was the permanent record, and online seemed ephemeral; in fact, the reverse is true.'

 

 

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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

Session reports

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