Intermediaries

Updates

The European Parliament approved amendments to the Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, which intends to harmonise aspects of the copyright law across the EU. The vote included two controversial points, enshrined in Articles 11 and 13, dubbed the 'link tax' (or ‘snippet tax’) and the 'upload filter' by critics. Article 11 is intended to give publishers and newspapers a way to make money when companies like Google link to their stories. It extends the 2001 Copyright Directive to grant publishers direct copyright over "online use of their press publications by information society service providers". Search engines and online platforms, like Twitter and Facebook, will have to pay a license to link to news publishers when quoting portions of text from these outlets. The bill says that the new rights given to publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users”. However, it does not make clear what counts as ‘portions of the text’ or as a commercial platform which could allegedly encompass blogs, RSS feeds, or a Facebook page operated by an individual who has a considerably large audience for example. Article 13 says that online platforms are liable for content uploaded by users that infringes copyright. It requires that platforms proactively work with rightsholders to stop users uploading copyrighted content. This could potentially mean scanning all data being uploaded to sites like YouTube and Facebook. This measure could affect memes - images or videos that spread 'virally' online, often accompanied by a witty snippet of text - and music remixes shared online. The proposal will now enter negotiations between the Council of the EU, The European Commission and the Parliament. If these three bodies agree, it will be sent to each EU member state for implementation in 2019.

The US Department of Justice has requested a ruling of contempt of court in response to Facebook's refusal to carry out a surveillance request on its Messenger. According to sources, this is part of an ongoing investigation of the MS-13 gang. According to Techspot, this is important, since 'complying with the request could set a dangerous precedent for other privacy-minded companies'. This case raises issues similar to those of the 2016 case between the US FBI and Apple.

Reuters' Rich McKay reports that Apple, YouTube, and others drop conspiracy theorist Alex Jones because the Infowars author 'had broken community standards'. McKay quoted Facebook as saying it removed Alex Jones'  pages 'for glorifying violence, which violates our graphic violence policy, and using dehumanizing language to describe people who are transgender, Muslims and immigrants, which violates our hate speech policies'. In response to the takedown, CNN published We need to talk about Alex Joneswith LZ Granderson saying 'I don't like what Alex Jones says, but I like that I can call him an idiot'. Kelly Hawes in the Rushville Republican also highlights freedom of expression, starting his article Free speech should apply to everyone by writing 'The solution to our broken public discourse is not to ban guys like Alex Jones from social media.' A similar debate is ongoing with the British case of Tommy Robinson, released from jail after what The Atlantic called The British Trial That Became a Free-Speech Crusade for the Right.

The Intercept reports, based on leaked documents, that Google plans to launch a censored search engine called Dragonfly, in China. In the article, author Ryan Gallagher states that the app 'will blacklist websites and search terms about human rights, democracy, religion, and peaceful protest'. Gallagher reports that this represents a clear shift in Google's China policy, opening a path for the first Google search engine in China in almost a decade. According to the article, websites blocked by the Great Firewall will be removed from the first page of results, although a disclaimer will explain that 'some results may have been removed due to statutory requirements'. In their commentary Google’s Dragonfly: A Bellwether for Human Rights in the Digital Age, Sarah McKune and Ronald Deibert do not find Google's 'change of heart' surprising, citing forces such as 'the entrenchment of digital authoritarianism, among both democratic and non-democratic countries, and the rollback of human rights'. McKune and Deibert conclude by warning 'A digitized world increasingly looks like a surveilled and censored world; options for engagement that do not compromise human rights in some form are dwindling'.

Ms Dubravka Šimonović, UN Special Rapporteur on Violence against Women, its causes and consequences, emphasised online/ICT-facilitated violence against women and girls in her statement to the 38th session of the Human Rights Council. Her report aims to 'start the process of understanding how to effectively apply a human rights-based approach and human rights instruments to prevent and combat online violence against women as human rights violations'. Recognising that emerging modalities of violence of women share common roots with other forms of violence against women, she pointed out that 'The definition of violence against women should be inclusive of all acts of gender-based violence against women and girls which are committed, facilitated or aggravated by use of ICTs, as well as including threats of such acts.' Šimonović called for new laws and recommended that states should ensure a regulatory framework that includes women's human rights instruments that prohibit gender-based violence online, as well as other points. The Association for Progressive Communications (APC) welcomed the report, supporting mention of the role of Internet intermediaries and highlighting that 'responses to content that reinforces violence against women should be rooted in human rights norms and require clear definitions, consistent with the principles of legality, necessity, proportionality, and legitimacy, for what constitutes harmful content'.

On June 14, the Moscow City Court recognised blocking of messenger Telegram on the territory of Russia as legal, thus re-confirming the previous court decision. TASS reports that Telegram lawyers also intend to file a cassation appeal with the next cassation instance, Presidium of the Moscow City Court and if the need arises, with the Russian Supreme Court. Telegram has also filed an appeal against the Russian authorities’ decision to ban Telegram with the European Court of Human Rights (ECHR) on 18 June, which is its second appeal before the ECHR.

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

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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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