The role of internet intermediaries – to connect us to the internet to be able to interact and transmit text messages to our people and friends – has been one of the most fascinating advantages of new information technology.
In particular, internet has tremendously revolutionalised life in the communication landscape. In fact, if one says the terrain of communication has turned the entire globe into a village they would be perfectly right.
This incredible achievement is definitely credited to the internet intermediaries. They play a crucial role in enabling people access to the internet and in transmitting third-party content. Without internet service providers (ISPs), for example, there would be no access the internet and to the voluminous information that we have accustomed to being able to access at the click of a mouse.
Similarly, without social media and blogging platforms, ordinary internet users would lose a valuable way of publishing their opinions and instantaneously sharing information. Over and above, search engines are a principal means by which internet users find and access information stored in their database.
If ever there was a right significantly bolstered by the advent of internet is freedom of expression. It can, however, be naïve to assert that, due to the development of new information technology by virtue of intermediaries’ vitally important role, new information technology is panacea.
Proverbially, internet has its own downside. Owing to the unprecedented rate and magnitude at which internet users generate and distribute content suggest that cooperation may be necessitated between the state and internet intermediaries so as to ensure the safe use of internet.
However, two questions can be raised: should the intermediaries be required oftentimes to co-operate with State to filter, block, remove, record and report third-party content (illegal) to the State?
How can a right balance be struck in safeguarding the freedom of expression and right to privacy of internet users (intermediaries’ customers) and at the same time co-operating with the State to deal with cyber-trends (attacks)?
The fact that there are no internationally-agreed guiding principles, the issue is in the hands of State to decide.
That said, each country has its own legal approach in light of freedom of expression and the right to privacy vis-à-vis the cyber-attack.
Conventionally, internet intermediaries are, however, regarded as passive facilitators (obviously not publishers, simply provide a platform), or conduits, or gatekeepers, or messengers and thus not liable for third-party content (harmful).
Liability of internet intermediaries is considered to be one of the most controversial issues to emerge from cyberspace. For example, Rwanda’s law relating to electronic messages, electronic signatures and electronic transactions doesn’t assign liability to ISPs unless they modify third-party content, or initiate the transmission of electronic message, or choose the addressee.
More interestingly, ISPs are under no obligation to monitor third-party content by presumption that they don’t know content going through the wires. However, if there is a complaint, a person can address it to the ISP to take down the content in question.
Likewise, under the USA law, ISPs and Social Media are not responsible for third-party content unless they take part in substantial editing of electronic messages, otherwise they enjoy broad immunity; even in content relative to defamation and violation of privacy.
Similarly, EU e-Commerce Directive rules out liability of the ISPs for third-party content posted on the internet without modification by intermediary, or for transaction taking place through their platform outside of their knowledge or control, nor do they have monitoring and surveillance obligation.
EU law, however, requires internet intermediaries to remove the contentious content as expeditiously as possible so long as a complaint is brought to the attention of the given ISP. However, EU does recognise a considerable degree of latitude by member states to impose monitoring mechanism (to co-operate) with regard to illegal online content.
The common denominator in three above-mentioned examples is that internet intermarries enjoy broad immunity.
The rationale for such immunity is to bar trampling upon the right to freedom of expression and the right to privacy.
Requiring internet intermediaries to co-operate with the state, or assigning liability or imposing duty to block or remove illegal content is a complex issue in controlling internet activity. Arguably, any such cooperation must be expressly provided by law and there must be an order issued by judicial authority.
Albeit the grant of broad immunity to intermediaries, they should co-operate with state for manifestly legitimate reasons.
First, as a matter of practicality, internet intermediaries are best placed to filter, block or remove the offensive materials since they have technical and financial capacity to do so. Second, as a matter of social responsibility, intermediaries should offer solutions to the challenges their activities present for law enforcement.
Since internet intermediaries benefit from posting third-party content online through advertising or the payment of subscription fees, they can, and do, play an important role in the fight against objectionable content, such as child porn, defamation, violation of privacy and so forth.
Internet intermediaries, an integral part of society, should have a bounden duty to protect the rights of internet users and society at large.
The writer is a lecturer and international law expert