Intermediary Liability

Intermediary liability is where technological intermediaries, such as ISPs and websites, can be held legally liable for unlawful content disseminated by users of those services.(1) This can arise in various circumstances, including copyright infringements, digital piracy, trademark disputes, network management, spamming and phishing, “cybercrime”, defamation, hate speech, child pornography and privacy.(2)

A report published by UNESCO identifies the following standards regarding intermediary liability:(3)

• Limiting the liability of intermediaries for content published or transmitted by third parties is essential to the flourishing of internet services that facilitate expression.
• Laws, policies, and regulations requiring intermediaries to impose content restrictions, blocking, and filtering in many jurisdictions are not compatible with international human rights standards for freedom of expression.
• Laws, policies, and practices related to government surveillance and data collection from intermediaries, when insufficiently compatible with human rights norms, impede intermediaries’ ability to adequately protect users’ privacy.
• Whereas due process generally requires that legal enforcement and decision-making be transparent and publicly accessible, governments are frequently opaque about requests to companies to restrict content, the handover of user data, and other surveillance measures.

There is general agreement that insulating intermediaries from liability for content generated by others protects the right to freedom of expression online.  Such insulation can be achieved either through a system of absolute immunity from liability, or a regime that only fixes intermediaries with liability following their refusal to obey an order from a court or other competent body to remove the impugned content.

As to the latter, the 2011 Joint Declaration provides that intermediaries should only be liable for third party content when they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it.(4)

The ECtHR has considered intermediary liability in several cases:

• In 2013, in the case of Delfi AS v Estonia, the ECtHR considered the liability of an internet news portal for offensive comments that were posted by readers below one of its online news articles.(5)

• The portal complained that being held liable where the comments of its readers breached the right to freedom of expression.  The ECtHR dismissed the case, holding that the finding of liability by the domestic courts was a justified and proportionate restriction of freedom of expression because the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, and allowed their authors to remain anonymous.  It further noted that the fine imposed by the Estonian courts was not excessive.
• In 2016, in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary, the ECtHR considered the liability of a self-regulatory body of internet content providers and an internet news portal for vulgar and offensive online comments posted on their websites.(6) The ECtHR reiterated that, although not publishers of comments in the traditional sense, internet news portals still had to assume duties and responsibilities.  The ECtHR found that, although offensive and vulgar, the comment was not unlawful speech, and upheld the claim of a violation of the right to freedom of expression.
• In 2017, in the case of Tamiz v United Kingdom,the ECtHR had cause to consider the ambit of intermediary liability.(7) The applicant, a former politician in the United Kingdom, had claimed before the domestic courts that a number of third-party comments posted by anonymous users on Google’s Blogger.com were defamatory.  Before the ECtHR, the applicant argued that his right to respect for his private life had been violated because the domestic courts had refused to grant him a remedy against the intermediary.  His claim was ultimately dismissed by the ECtHR on the basis that the resulting damage to his reputation would have been trivial.  The ECtHR highlighted the important role that ISPs perform in facilitating access to information and debate on a wide range of political, social and cultural rights, and seemed to endorse the line of argument that ISPs should not be obliged to monitor content or proactively investigate potential defamatory activity on their sites.

Other courts have taken more definitive positions in respect of intermediary liability.  For example, the Supreme Court of India has interpreted domestic law to only provide for intermediary liability where an intermediary has received actual knowledge from a court order, or where an intermediary has been notified by the government that one of the unlawful acts prescribed under the law are going to be committed and the intermediary has subsequently failed to remove or disable access to such information.(8) Furthermore, the Supreme Court of Argentina has held that search engines are under no duty to monitor the legality of third-party content to which they link, noting that only in exceptional cases involving “gross and manifest harm” could intermediaries be required to disable access.(9)

In light of the vital role played by intermediaries in promoting and protecting the right to freedom of expression online, it is imperative that they be safeguarded against unwarranted interference — by state and private actors — that could have a deleterious effect on the right.  For example, as an individual’s ability and freedom to exercise their right to freedom of expression online is dependent on the passive nature of online intermediaries, any legal regime that causes an intermediary to apply undue restraint or self-censorship toward content communicated through their services will ultimately have an adverse effect on the right to freedom of expression online.  The UNSR has noted that intermediaries can serve as an important bulwark against government and private overreach, as they are usually, for instance, best-placed to push back on a shutdown.(10) However, this can only truly be realised in circumstances where intermediaries are able to do so without fear of sanction or penalties.