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    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: (i) conduits, which are technical providers of internet access or transmission services; and (ii) 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.  As pointed out by the UN Special Rapporteur on Freedom of Expression 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)

    Some countries in Africa have laws providing for the limitation of intermediary liability, such as Ghana and Uganda.(3) 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.(4) Other countries in Africa have laws that explicitly make intermediaries liable for their actions regarding content posted using their services.(5) The High Court of Tanzania ruled in 2017 in Jamii Media v The Attorney General of Tanzania and Another(6) 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.(7)

    Additionally, 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 lack transparency and public scrutiny.(8) 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.(9)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.(10) This, clearly, has serious consequences for freedom of expression online.

    Footnotes

    1. Association for Progressive Communications, ‘Frequently asked questions on internet intermediary liability’ (2014) (accessible at: https://www.apc.org/en/pubs/apc%E2%80%99s-frequently-asked-questions-internetintermed). Back
    2. OHCHR, 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). Back
    3. See article 92 of Ghana’s Electronic Transactions Act of 2008 (accessible at: https://www.researchictafrica.net/countries/ghana/Electronic_Transactions_Act_no_772:2008.pdf) and Section 29 of Uganda’s Electronic Transactions Act of 2011 (accessible at: https://www.ug-cert.ug/files/downloads/Electronic%20Transactions%20Act%20(Act%20No.%208%20of%202011).pdf). Back
    4. CIPESA, ‘State of Internet Freedom in Africa 2017,’ at p 23 (2017) (accessible at: https://cipesa.org/?wpfb_dl=254). Back
    5. 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. Back
    6. High Court of Tanzania, Miscellaneous Civil Cause No. 9 of 2016 (2017) (accessible at: https://thrdc.or.tz/wp-content/uploads/2019/09/JAMII-MEDIA-Judgment-20-Mar-2017.pdf). Back
    7. 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/). Back
    8. 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). Back
    9. CIPESA above at pp. 24. Back
    10. 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/). Back