Fundamentals of IT Law
Why does the Conversation on Intermediary Liability need a Multi-Stakeholder Approach?
Intermediary Liability is one of the most important aspects of internet governance today. In the 1990s, the safe harbor provisions were introduced in order to promote and facilitate innovation in the internet ecosystem. This provision acted as a shield and protected online intermediaries from liability that arose due to content generated by third-party users. These intermediaries include but are not limited to tech giants like Facebook, Google, YouTube, and Twitter. Recently, the debate has shifted from intermediary liability to intermediary responsibility and laws are now being drafted that require these intermediaries to actively take down or monitor ‘illegal’ or ‘unlawful’ content. This particularly raises questions of policing by private entities and consequently, issues of upholding human rights online. The internet has made socio-political debates more inclusive on one hand and on the other hand, it has also materialized threats of hate speech, fake news as well as a violation of privacy by sharing information of users to deduce sensitive personal information like their political affiliations. Therefore, it is essential to balance the interests of all stakeholders in the internet ecosystem whilst upholding the human rights of users. This article will specifically analyze the prevailing issues in the current intermediary liability regime and the advantages of multi-stakeholder for better governance on the internet.
The internet is transnational. It has evaporated the concept of state boundaries, dismantled geographical limitations, and has managed to connect people across continents almost porting us back to the times of Pangea. Online intermediaries that are physically situated in a particular geographical region provide a platform that allows people across the globe to engage in public discourse. These users include but are not limited to the citizens of various countries, people holding important public posts, NGOs, activists, political parties, and its members, etc. Considering the distributed, open, and transnational character of the internet it becomes necessary to regulate the internet not multilaterally but in accordance with the multi-stakeholder approach. In the multilateral approach, only the states engage in a conversation to regulate a particular subject but in the multi-stakeholder approach, every stakeholder that has an interest in the subject matter along with the States participates in formulating policies for its regulation by putting forward their recommendations or suggestions. The open and transnational character of the internet demands a decentralized governance structure. The multi-stakeholder approach allows every participant and interested groups to build an ecosystem for better coordination.
Internet governance deals with both governances of the internet and governance on the internet. The former deals with the administrative aspects of the internet and discusses global internet architecture. It has successfully adopted the multis-stakeholder approach. There are four advisory committees that advise the three groups that are entrusted with the responsibility of making policies. At the core of the multi-stakeholder approach lies the principles of collaborating and finding solutions for providing stable and secure internet connections to people around the globe. Unlike governance of the internet, the latter does not have comprehensive and uniform rules established at the international level and every country has its own understanding and sets of principles that they apply while regulating online intermediaries. Online intermediaries have made discourses of public importance more inclusive and helped in mobilizing people for a cause, created awareness about important socio-political issues. It was also recognized in the Communiqué on Open Journalism that intermediaries have become the main platform for facilitating access to media content as well as enhanced the participatory nature of Open Journalism[i]. Simultaneously, it has also increased the spread of misinformation and hate speeches that have particularly raised issues of public order and led to unfortunate episodes of mob lynching. Article 19 of the International Covenant on Civil and Political Rights[ii] (ICCPR) enshrines the freedom of expression that qualifies as a human right. The privatized policing by such intermediaries raise issues of maintaining and upholding freedom of expression online. This article recommends the adoption of a multi-stakeholder approach at both the domestic and international level for better implementation of human rights online.
I. Recent Developments in Intermediary Liability
Intermediaries host, transmit and store information for third party transactions. It provides a platform for such a transaction of knowledge. Safe Harbor provisions act as a shield for intermediaries and protect them from being held liable for acts of their party users. Manila Principle enshrines certain conditions and restrictions for content regulation that shall consequently also help in maintaining freedom of expression, a human right under Article 19 of ICCPR. The principles are as follows: (1) Intermediaries should be shielded from third party liability, (2) Content must not be required to be restricted without the intervention of the judicial authority, (3) Request for restrictions of content must be clear, unambiguous and should follow due process, (4) Laws and content restrictions should comply with the tests of necessity and proportionality, (5) Restrictions should follow due process and (6) Transparency and accountability should be built into all the restrictions and regulations[iii].
Recently, the conversation has shifted from intermediary liability (IL) to intermediary responsibility and obligating such intermediaries to take down ‘illegal content’. For instance, it is argued that EU laws are making online intermediaries accountable if not tortiously liable[iv]. European Commission also agreed with tech giants like YouTube, Twitter, Facebook, and Instagram to prevent the spread of hate speech online in Europe as a part of code of conduct. This has particularly raised issues of internet policing and privatized enforcement[v]. There have been reports that show that more than 2,00,000 Twitter accounts were suspended because their activities were not in compliance with Twitter’s terms and conditions[vi]. Therefore, the posts were removed because it failed to adhere to the company’s policy and not because of any inherent ‘illegality’. The risk that arises by such privatized policing is that the standard for restricting freedom of expression may be guided by the company’s terms and conditions rather than the rule of law that prescribes the qualification of tests of necessity and proportionality to restrict the freedom even on online platforms.
In India, section 79(3)(b) of the IT Act[vii] that was read down in Shreya Singhal v Union of India[viii], requires the intermediaries to take down content from their platform that amounts to being ‘unlawful’ upon receiving a government notice or judicial order. The Draft Intermediary Rules, 2018[ix] under section 79 (safe harbor provision) of the IT Act introduces rule 3(9) that states as follows:
“The Intermediary shall deploy technology-based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.”
This rule is yet to be notified. Once the rule comes into force, it shall enable online intermediaries to take down ‘unlawful’ content using ‘automated technology’ thereby, effectively enforcing privatized policing of content. This section goes against section 79(3) of the IT Act that explicitly requires content to be taken down only by way of government notice or judicial order only as also reiterated in the Shreya Singhal case. This section also effectively violates Article 19 of the Indian Constitution and human rights standards set out in ICCPR that has been signed and ratified by India.
II. Human Rights Online
Article 19 of the Covenant also holds the right to freedom of expression but can be restricted by law when necessary and that is to respect the rights or reputation of others and for the protection of national security, public order, public health, or morals. General Comment 34 stated that the standard of freedom of expression that applies offline shall also be upheld on the internet-based modes of expression[x]. The tension of maintaining freedom of expression online has been aggravating with the advent of privatized enforcement. Therefore, freedom of expression can only be limited on the grounds as enshrined under Article 19`. It is necessary to formulate laws that restrict freedom of expression to include within their framework tests of necessity and proportionality and for better governance the tests should be read conjunctively. Test of necessity requires that restriction that is imposed should have a direct and immediate connection with the act that is intended to be restricted. Proportionality further requires that the restriction imposed should be the least intrusive and there should not exist an alternative that is less restrictive. The Intermediary Liability rules both in India and Europe have not included the necessary checks to maintain human rights online.
In Shreya Singhal, the court had explicitly held that for section 79 of the IT Act to be invoked, it is necessary for the content to violate any one of the grounds under Article 19(2) of the Indian Constitution[xi]. Rule 3(9) under the Intermediary Liability Rules fails to consider that ‘unlawful’ content is not defined under the Act. It does not specify whether the restriction will be in relation to Article 19(2) of the Indian Constitution. It also vests the act of monitoring a private entity. In Anuradha Bhasin v Union of India[xii], the petition was filed under Article 32 to ascertain the legality of internet shutdowns. The courts held that freedom of expression and freedom to carry on trade/business using the medium of the Internet is constitutionally protected. Although the courts did not hold access to the internet as a fundamental right, it recognized the internet as a medium that enables the exercise of fundamental rights. Fundamental rights can be enforced only against the State or organizations that perform a public function. It would either be necessary to hold that these online service providers fulfill the criteria of performing a public function or allow the horizontal enforcement of fundamental rights.
Furthermore, in Europe, countries like Germany have enacted a law that allows the taking down of content that is manifestly illegal[xiii]. There are no standards provided to ascertain ‘manifest illegality’. The same provisions have attracted a lot of criticism from various civil societies.
While we read these provisions that limit the freedom of expression of users online, there are three issues that are most prominent – (i) absence of in-built checks to provide a coherent standard for restricting freedom of expression (ii) the role of private entities for restricting freedom of expression and (iii) the level of accuracy of ‘automated technology’ in identifying ‘unlawful’ content. Whether automated technology will be able to identify and appreciate the context in which a particular content is posted. The inherent bias in data sets continues to exist and if automated technology replicates the bias, freedom of expression will be severely violated.
III. Multi-stakeholder Approach: Intermediary Liability
Any decision that is taken with respect to the operations of the intermediaries inevitably affects all stakeholders. Therefore, it becomes essential to approach issues with respect to intermediary liability from a multi-stakeholder approach that allows every participant to voice their concerns. The multi-stakeholder approach is characterized by transparency, accountability, and inclusivity. Inclusivity offers legitimacy to the decision-making process and transparency enriches the decision-making process, where all stakeholders are aware of the interests of other interest holders. Since all the stakeholders are a part of the decision-making process, they are also collectively responsible for upholding the rights and interests of all stakeholders.
It is necessary to adopt this approach as decisions with respect to IL have a wide range of impact on a distributed range of people, overlapping rights and responsibilities, and a varying range of expertise required that also includes technical expertise. It is necessary to acknowledge that this approach does not guarantee a single or no solution but aims to arrive at an amicable decision by constant deliberation by every stakeholder group. It is a participatory process that helps in arriving at a solution for effective and efficient governance.
The Internet Corporation for Assigned Names and Numbers (ICANN) is a successful instance of a multi-stakeholder approach. After the Internet Assigned Numbers Authority (IANA) transition, for over two years people worked on creating a multi-stakeholder plan for governance of the internet. Similarly, IL can also derive inspiration and lessons from this transition.
The stakeholder in this process is the Online Service Providers (OSPs) (Facebook, YouTube, etc.), civil society, technical community as well as the States.
The uncertainties with respect to IL in different countries can potentially cause damage to innovation that such companies wish to undertake and furthermore, the proxy censorship can unnecessarily curtail the freedom of expression online. Additionally, the extent of posing liability or holding the OSPs accountable has been increasing steadily due to the role played by these platforms in the governance of the country as well as during elections. Security of the State will always be an important consideration for restricting freedom of speech and expression. This shows that the internet is an important political tool for the States and their role in the governance of the internet. The banning also prevents the free flow of information that is an integral and inherent characteristic of the internet. Therefore, it is necessary to account for the participation of all the above-mentioned stakeholders to arrive at a comprehensive and uniform set of rules for content regulation and maintaining human rights online.
In order to make the debate more inclusive and implement the intermediary liability in its essence, there should be an international body that exclusively deals with issues with respect to intermediary liability that includes limiting hate speech, enforcing copyright and trademark, liabilities and obligations, etc. This international body should also discuss the possibilities and developments in technology that can help in filtering out ‘unlawful content’ in accordance with human rights standards. A separate committee of technical experts that can collaborate with (other stakeholders civil societies, States, OSPs) to help them assess how well can the proposed technology be adopted to filter out content from their respective platforms. It is also necessary to limit the power that such intermediaries have and therefore, arises need to imagine a law enforcement agency that works closely with such OSPs for upholding human rights online. Therefore, the multi-stakeholder model will require deliberations and constant dialogue among the stakeholders in order to arrive at a comprehensive and uniform set of rules for the efficient and effective governance of OSPs.
While we are at discussing the advantages of the multi-stakeholder approach, it is also necessary to address certain issues that might arise while engaging in this process for determining the universal rules applicable for assessing intermediary liability. One of the biggest challenges to the implementation will be the varied interests of every stakeholder. OSPs are profit-driven, States constantly try to assert their sovereignty, and recently the civil societies are constantly engaging in the struggle to uphold the fundamental rights of the citizens. OSPs are private enterprises that can be controlled by sanctions. States have adopted internet shutdowns as a tool to prevent the free flow of information. Both these parties are at positions of power whereas the citizens that are the consumers are heavily dependent on such platforms for conducting their regular lives, especially during the pandemic. There is a stark difference in the bargaining power of all the stakeholders involved. Therefore, for the multi-stakeholder to be successful it is necessary to have an empathetic conversation that recognizes and upholds the interests of all stakeholders.
Multi-stakeholder is not a solution by itself but a process to arrive at an amicable solution while addressing the issue of internet governance. Multi-stakeholder as a process shall work due to the distributed character of the internet. Since the OSPs offers a platform for inclusive debates while also raising concerns of public order and national security, it becomes essential to balance the interests of all stakeholders and arrive at a solution that benefits all and does not compromise the interests of one group at the behest of the other without adhering to the checks that enable in upholding the rule of law. It is also important to realize an act that deals with taking down content that has the potential of violating freedom of expression should not be delegated to a private party, against whom it shall be difficult to enforce one’s fundamental rights. Thus, considering all these issues the multi-stakeholder approach seems to be the most appropriate and effective process to arrive at a solution that serves the interests of all.
This article can be cited as:
Aarya Pachisia, Why does the Conversation on Intermediary Liability need a Multi-Stakeholder Approach?, Metacept- InfoTech and IPR, accessible at https://metacept.com/why-does-the-conversation-on-intermediary-liability-need-a-multi-stakeholder-approach?
[i] Organization for Security and Cooperation (OCSE) The Representative on the Freedom of the Media, Dunja Mijavotić, 3rd Communiqué on Open Journalism, Vienna (2016) available at https://www.osce.org/files/f/documents/5/8/219391.pdf
[ii] International Covenant on Civil and Political Rights (adopted 16th December, 1966, entered force 23rd March 1976) 999 UNTS 171 ICCPR.
[iii] See Manila Principles on Intermediary Liability available at https://www.manilaprinciples.org/
[iv] See Martin Husovec, Accountable, Not Liable: Injunctions Against Intermediaries, TILEC Discussion Paper No. 2016-012 (May 2, 2016) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2773768.
[v] Eugénie Coche, Privatised Enforcement and the Right to Freedom of Expression in a world confronted with Terrorism Propaganda Online, (2018) 7 (4) Journal on Internet Regulation 1, https://policyreview.info/pdf/policyreview-2018-4-1382.pdf accessed 14th November, 2020.
[vi] ibid 2.
[vii] S. 79(3), The Information Technology Act, 2000.
[viii] Shreya Singhal v Union of India, AIR 2015 SC 1523
[ix]The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, available at https://www.meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf
[x] UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34 , available at: https://www.refworld.org/docid/4ed34b562.html
[xi] Art 19(2), the Constitution of India.
[xii] Anuradha Bhasin v Union of India, (2020) 3 SCC 637.
[xiii]Amélie Heldt, Germany is Amending its Online Speech Act, NetzDG.. but not Only that, (2020) available at https://policyreview.info/articles/news/germany-amending-its-online-speech-act-netzdg-not-only/1464#:~:text=The%20German%20%E2%80%9Ccensorship%20law%E2%80%9D&text=The%20Act%20obliges%20social%20networks,transparency%20reports%20twice%20a%20yea%C6%92r accessed 16th November, 2020.