Excerpt from the Final Report of the Global commission on Internet Governance, Link (CC-BY-NC-ND)
… Content intermediaries are evolving institutions. As a result, government policy makers are struggling to understand these new roles and to determine whether and how to legislate or regulate new behaviours in this nascent and fast-changing industry. The situation is further complicated by the transnational reach of these intermediaries. The concept of Internet intermediary liability has emerged as a way to regulate or require the takedown of harmful or illegal content. Intermediary liability can be applied in a variety of contexts, including: copyright infringements, digital piracy, trademark disputes, network management, spamming and phishing, cybercrime, defamation, hate speech, child pornography, censorship or privacy protection.[64]
Different governments have developed different models of liability. For some governments, intermediaries can be held liable for content because they directly contributed to an illegal activity or because they had the ability to control the content and derived some kind of financial benefit by not doing so. Other governments offer “safe harbours” to intermediaries, where they are not liable for user actions on their platforms as long as their own actions stay within the rules laid out in the safe harbour provision. Safe harbours are considered an important element in supporting the emergence of innovative services by providing intermediaries with enough legal clarity to conduct a wide range of activities without the fear of potential litigation. However, there are also concerns that overly broad safe harbours are sometimes in contention with incentives to uphold human rights online.[65] Civil society and human rights activists have begun to propose the adoption of principles on intermediary liability, to promote freedom of expression and enable innovation. The Manila Principles on Intermediary Liability outline a number of legal principles that the Commission fully supports, including: shielding intermediaries from liability for third-party content; the requirement of judicial authority for content takedowns; necessity and proportionality; clarity and due process; and transparency and accountability.
The Commission also believes that actors in the digital ecosystem — whether technology companies or intermediaries such as content hosts or ISPs — should not be required to perform the functions of law enforcement, except as required by appropriate judicial order.
Recommendation: Legally required takedown of content should happen at the source of the content — or where it is being hosted. Data aggregators and social media websites must be responsible for the takedown of unlawful content that is hosted by them. Any takedowns should be subject to the legal principles of openness, conflict of interest, transparency and appeal. Network operators and Internet intermediaries should not be held liable for the use of their infrastructure or services for illegal purposes. At the same time, when presented with legitimate warrants, private companies should cooperate with law enforcement agencies.
Infrastructure and Service Intermediaries, Freedom of Expression and Network Neutrality
Thus far, this section has spoken to the role of content intermediaries in relation to law enforcement, particularly with regard to human rights. However, infrastructure and service intermediaries — or companies that handle the transmission of data — are also important private-sector actors that may influence and, in some cases, govern how we access information online. Like content intermediaries, infrastructure and service intermediaries can block content. Notably, these actors have different tools at their disposal. Instead of issuing takedown notices, infrastructure and services intermediaries can redirect traffic away from websites. While these actions do not remove content from its source, they can effectively remove the pathways that allow users to access it. In some countries, infrastructure and service intermediaries are used to block access to certain websites — including social media websites such as Twitter, Facebook or YouTube, or websites where pirated and copyright material is being hosted. Difficult questions have arisen, including what might be the justification for requiring a private entity to act in lieu of a law enforcement agency, and under what conditions.
Similarly, infrastructure and service intermediaries can influence or determine the conditions under which content is made available to users. An active debate, generally known as the network neutrality issue, has emerged over what types of control are acceptable and under what circumstances.[66] Network neutrality is the principle that Internet traffic should be treated equally and that network operators should be prohibited from prioritizing, throttling or blocking particular types of traffic that flow across their network. The Commission supports the idea that Internet traffic should be treated equally, without discrimination, restriction or interference, independent of the sender, receiver, type, content, device, service or application. This principle does not rule out so-called “specialized services” such as hospital-to-hospital communications that require higher speeds or routine traffic engineering and management practices that ISPs regularly engage in.
Some network operators argue that traffic management techniques can be used to improve the overall efficiency of the network. For example, VoIP (voice over Internet Protocol) calls or other streaming services may be given priority over email content, as delays make a noticeable difference in streaming video as opposed to sending and receiving emails. However, there are serious concerns that network operators may go beyond what is necessary to ensure that data is flowing smoothly and efficiently across their networks. For example, given the dominance of the large Internet content providers and a very few service providers, there has been concern that some network operators may be using traffic management techniques to benefit their own or their partners’ services or for other types of commercial gain, or to help achieve political goals. For example, some media coverage has demonstrated the governance role that can be played by network operators in curbing online piracy, by throttling a user’s home Internet when they are uploading and downloading large amounts of data.[67]
Recommendation: In order to keep the Internet open and to foster innovation and competition through the digital ecosystem, regulators should demand transparency and prohibit arbitrary discrimination by the main gatekeepers across the value chain. This would include blocking legal content or applications, throttling network speed or anti-competitive behaviour to advantage the gatekeeper’s preferred services. Consistent with good regulatory practice, a technologically neutral approach should be sought.
