What is an Internet Intermediary?

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) service providers, such as hosts, providers of content services, such as online platforms (e.g. social media websites), caching providers and storage services.(1)

Examples of internet intermediaries are:

• Network operators, such as Airtel, Globe and Axiata.
• Network infrastructure providers, such as Cisco, Huawei, Ericsson and ZTE.
• Internet access providers, such as MyKRIS, WorldTel and PTCL.
• Communications service providers, such as Telenor, Metfone and SLT-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) or even social media platform liable for the content it hosts on behalf of others?  Courts have generally found that an ISP does not ‘publish’ any 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.”

Some countries in South and Southeast Asia, such as the Philippines,(2) have laws providing for the limitation of intermediary liability, to help 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.  Other countries in South and Southeast Asia have laws that explicitly make intermediaries liable for their actions regarding content posted using their services.(3)

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.  Even where such actions are authorised under domestic law, often the legislation used is worded in an overly broad manner, giving authorities significant discretion to order content removed on vaguely defined or impermissible grounds.  For example, under section 37 of The Prevention of Electronic Crimes Act 2016,(4) the Pakistan Telecommunication Authority is granted “the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.”