What is an Internet Intermediary?

Module 2: Introduction to Digital Rights

Internet intermediaries play an important role in protecting freedom of expression and access to information online. An internet intermediary is an entity which provides services that enable people to use the internet, falling into two categories:

Conduits, which are technical providers of internet access or transmission services; and
Hosts, which are providers of content services, such as online platforms (e.g. websites), caching providers and storage services.(1)

Examples of internet intermediaries are:

Network operators, such as MTN, Econet and Safaricom.
Network infrastructure providers, such as Cisco, Huawei, Ericsson and Dark Fibre Africa.
Internet access providers, such as Comcast, MWeb and AccessKenya.
Internet service providers, such as Liquid Telecommunications South Africa, iBurst, Orange, and Vox Telecom.
Social networks, such as Facebook, Twitter and LinkedIn.

One of the most challenging questions relating to internet intermediaries is whether they constitute publishers in the traditional sense of the word. Is an Internet Service Provider (ISP) liable for the content it hosts on behalf of others? Increasingly, courts are finding that an ISP does not “publish” more than the supplier of newsprint, or the manufacturer of broadcasting equipment does. As pointed out by the UNSR on FreeEx in 2011:

“Holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.”(2)

On the other hand, the increasing power and influence of multinational technology companies have sparked calls for greater transparency and accountability over their internal operations and the decisions they make that have significant effects on the exercise of the rights to freedom of expression and access to information around the world, such as decisions to remove specific content, ban particular users from their platforms, or to allow and promote political advertising.

The EU has been at the forefront of regulating internet intermediaries through the Digital Services Act, which sets out obligations for digital services that act as intermediaries in their role of connecting consumers with goods, services and content, including measures for the removal of illegal content and transparency requirements.(3)

Laws on the limitation of intermediary liability

Some countries in Africa have laws providing for the limitation of intermediary liability, such as Ghana and Uganda.(4) To protect themselves from liability even in cases where such legislation does not exist, intermediaries often develop terms and conditions that specify their responsibilities and those of their customers.(5) However, it has been noted that intermediaries do not always adhere to their own terms and conditions as has been seen in the removal of violent and sexualised hate speech targeting women.(6)

Other countries in Africa have laws that explicitly make intermediaries liable for their actions regarding content posted using their services.(7) The High Court of Tanzania ruled in 2017 in Jamii Media v The Attorney General of Tanzania(8) that government requests for the disclosure of user information from an internet intermediary were justified, and that the law governing such disclosures was not unconstitutional, despite a lack of regulations to govern the enforcement of the Act.(9)

In addition, internet intermediaries are increasingly being used by states to police the internet through direct requests to take down content or interfere with internet access, decisions which are often made outside of formal legal and regulatory frameworks and which lack transparency and public scrutiny.(10)

The Democratic Republic of Congo, for example, states in article 50 of the Framework Law No. 013/2002 on Telecommunications that the refusal to grant the request of the authority may lead to the temporary or definitive withdrawal of the operating license or to other penalties.(11)

After protests against the government in Zimbabwe in early 2019, the head of a major telecommunications provider, Econet, was candid in explaining to customers that limitations in network access were a direct response to a directive from the Zimbabwean government.(12) This, clearly, has serious consequences for freedom of expression online.

In 2020, the ECOWAS Community Court issued a pivotal decision for the right of freedom of expression in Togo and other West African States, as it held that internet shutdowns that had occurred in Togo violated this right and that the government’s national security arguments did not justify internet shutdowns.(13)

Footnotes

Association for Progressive Communications, ‘Frequently asked questions on internet intermediary liability’ (2014) (accessible at https://www.apc.org/en/pubs/apc’s-frequently-asked-questions-internetintermed).
UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ (2011) (accessible at https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf).
European Commission, ‘Digital Services Act’ (2023) (accessible at https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package).
See Ghana’s Electronic Transactions Act of 2008 (accessible at https://www.researchictafrica.net/countries/ghana/Electronic_Transactions_Act_no_772:2008.pdf) at Article 92 and Uganda’s Electronic Transactions Act of 2011 (accessible at https://www.ug-cert.ug/files/downloads/Electronic Transactions Act (Act No. 8 of 2011).pdf) at Section 29.
CIPESA, ‘State of Internet Freedom in Africa 2017’ (2017) (accessible at https://cipesa.org/?wpfb_dl=254) at p 23.
Global Witness ‘Violent and sexualised hate speech targeting women approved for publication by social media platforms’ (2023) (accessible at https://www.globalwitness.org/en/campaigns/digital-threats/south-africa-women-journalists-hate-speech/).
For example, article 30 of Burundi’s Law 100/97 of 2014 on electronic telecommunications provides that operators of electronic communications are fully responsible for fighting fraud on their domains and article 53 of the Law No 1/15 of 2015 regulating the media, provides that media organisations are responsible for any articles published on their portals, even where the person published anonymously.
Jamii Media v The Attorney General of Tanzania and Another (2017) (accessible at https://thrdc.or.tz/wp-content/uploads/2019/09/JAMII-MEDIA-Judgment-20-Mar-2017.pdf).
CIPESA, ‘Tanzania Court Deals a Blow to Intermediary Liability Rules’ (2017) (accessible at https://cipesa.org/2017/04/tanzania-court-deals-a-blow-to-intermediary-liability-rules/).
Association for Progressive Communications, ‘Policing the internet: Intermediary liability in Africa’ (2020) (accessible at https://www.apc.org/en/project/policing-internet-intermediary-liability-africa-0).
See above n 18 at pp 24.
Quartz Africa, ‘Zimbabwe’s internet blackout shows how powerless major telcos are against governments’ (2019) (accessible at https://qz.com/africa/1526754/zimbabwe-shutdown-econet-blames-government-whatsapp-still-off/).
Access Now ‘ECOWAS Togo Court Decision: Internet Access is a Right that Requires Protection of the Law’ (2023) (accessible at https://www.accessnow.org/ecowas-togo-court-decision/).