The Liability of Internet Intermediaries

Ed. Note: This post by Rithvik Mathur is a part of the TLF Editorial Board Test 2018

What are internet intermediaries? Why are they Relevant?

Internet intermediaries ‘bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products, and services originated by third parties on the Internet or provide Internet-based services to third parties.

Internet Intermediaries essentially facilitate transactions between different parties on the internet. According to the Organisation for Economic Co-operation and Development “they give access to, host, transmit and index content and services.”

Being a term with a broad meaning, it includes Internet Service Providers (ISP). Hosts, Social Media Platforms, Search engines, and so on under its ambit. Internet Intermediaries play a paramount role in society to the extent that courts have considered arguments asserting fast internet as a human right. They need no introduction explaining their relevance.

Since the commercialisation of the internet, there is a growing need to regulate its usage. The potential for abuse is undeniable, the extent of it depends on the onlooker. From mediating trade of illicit products to cyberbullying and stalking, the internet has been vastly abused. One specific debate revolves around the content that is hosted by the intermediary. For example, content that is morally objectionable or content that infringes copyrights is often hosted by intermediaries. The exigency for its regulation has been steadily increasing

Recently, countries have begun using intermediaries to regulate the use of the internet. Be it enlisting/coercing intermediaries into blocking access to content or holding them accountable for copyright infringements; governments have increasingly been relying on intermediaries for regulating the content available on the internet.

To understand this regulation of the use of the internet, we must examine the liability of intermediaries.

Forms of Liability

Intermediary liability has three distinct models of liability

The Strict Liability Models wherein intermediaries are expected to monitor content and any failure to ensure compliance entails some sanction. These models are used in Russia and China.

The Safe-Harbour Models wherein they are granted immunity provided their compliance with set requirements. For example, they may be expected to meet a minimum level of safeguards to be granted immunity from liability. These models are used in the United States.

Broader Immunity models grant intermediaries immunity without any monitoring requirements. Intermediaries are akin to messengers rather than publishers. These models are used in the EU.

Making intermediaries liable essentially creates an interest for them to compel them to regulate the content hosted by their domain.

Section 79 of the Information Technology Act provides for exemptions from the liability of intermediaries in certain cases. The intermediary is exempt if the intermediary exercises due diligence in discharging duties under the act and has not played an editorial role in producing the content that is hosted, provided they had no actual knowledge of the unlawful act. The courts have interpreted actual knowledge to mean knowledge of the specific content published being unlawful and not a general awareness of a tendency of such unlawful content being published.

Why Use Intermediaries to Regulate the Internet

Intermediaries have been delegated the task of regulation and are held accountable for failures in compliance largely for two reasons;

  1. It is fair to hold intermediaries accountable. Since the intermediary’s profit from the service they are providing, they must prevent any abuse.
  2. It is practical to hold them responsible. Their role as a medium places them in the best position to enforce such regulation as they possess the technical means to do so.

Departing From that Narrative

This post argues that there are three pitholes in having intermediaries regulate the internet.

First, they are unfit to make determinations evaluating the legality of the published content.

The very nature of a claim and subsequent dispute render the intermediary unfit to determine the outcome. It is an issue that balances various rights and interests involved. Despite having the technical means to enforce outcomes, this is a legal issue. The determination of the same cannot be left to a body that is party to the conflict.

Second, they are patently unfair as they have an interest in complying with complaints.

An individual has a very strong interest in their freedom of speech, that is to say, the derive immeasurable utility from saying what they want to say and having it heard. An intermediary does not have a direct interest in the same. On the other hand, they do have an interest in avoiding litigation or similar mechanisms available to complainants. Hence, they have an interest in complying with complainants and are often overly cooperative. Clearly, the individual’s right to a fair hearing and their freedom of speech would have much weight in the intermediary’s determinations. For example, in the case of Myspace Inc.Vs. Super Cassettes Industries Ltd,[1] Super Cassettes went to great lengths to ensure the compliance of Myspace. They withdrew permissions to share any of their copyrighted content and attempted redressal through mediation and litigation. The intermediary is often forced to comply. The existence of such a threat is enough to impeach their impartiality.

Third, it has a chilling effect on the freedom of speech and expression.

Essentially, the threat of sanctions from the government makes intermediaries overly willing to comply with complaints. It extends to intermediaries pre-emptively censoring content. The harsher the sanction, the more cautious the intermediary. Hence, intermediaries largely censor content that is questionable and fall within a grey area. This effect is the chilling effect, where the threat of sanctions makes intermediaries less willing to host such content.

These issues pose relevant problems in the present system that needs to be addressed to ensure a fairer resolution of disputes. Such a solution must balance freedom of speech with the practicality of regulation.

[1] Myspace Inc.Vs. Super Cassettes Industries MANU/DE/3411/2016.

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