The impact of criminal law

Under the larger issue of Freedom of expression

Be it online or offline, the illegitimate criminalisation of freedom of expression is one of the biggest threats to the right to freedom of expression. We analyse its impact on on freedom of expression online and the free and open Internet in general. We also look at the particular consequences criminal law in India in particular has had in this regard, examining not only Internet-specific laws, such as those regarding intermediate liability, but laws that predate the Internet as well.

Want to learn more about what intermediary liability is specifically? Read on to find out more.

What is intermediary liability?

Companies such as Google, Facebook, Internet Service Providers and domain name hosts are often called upon by governments to help maintain law and order on the Internet. But is it really appropriate to hold intermediaries, rather than authors, liable for content posted by their users?

The question of intermediary liability has been one of the most challenging for Internet governance.

At the heart of the Internet are companies that do not create any content, but provide crucial services for Internet users to be able to do so. These include platforms such as YouTube and social networking sites such as Facebook, but also your Internet Service Provider and domain name hosts. All of these companies are called intermediaries.

Increasingly, governments seek to hold intermediaries responsible for content hosted by their users. This is a radical break with the past, as until the advent of the Internet, only authors, or at the most publishers, were saddled with such responsibility.

One of the main reasons why governments increasingly turn to intermediaries to police the Internet is because the enforcement of the law online is notoriously more difficult than offline, as authors may be anonymous or may not be living in the country where their post is being read. For example, if a blog post that addresses an Indian audience is written by someone who lives in Malaysia, it is Malaysian law — not Indian law — that applies. Especially in cases where there is a fear of violence, this restriction can pose a genuine problem for law enforcement agencies.

The solution governments have come up with is to turn to intermediaries to police the net: if not taking down objectionable content, the very least intermediaries can do is to block it — or so at least many governments believe.

For the intermediaries themselves, the threat of widespread liability, of course, poses a tremendous problem from a business perspective. In many countries, governments have responded to this concern by incorporating so called safe harbour” provisions in the law: such provisions stipulate that intermediaries will not be held liable for user content that violates the law as long as the intermediaries adhere to the rules and regulations laid out under the safe harbour provision. By providing a legal framework, safe harbour provisions mitigate the risks illegal user content can pose for intermediaries.

Safe harbour provisions can, however, be more or less protective of users’ rights. In the best of cases, intermediaries are only required to take down content on the orders of a court. In the worst cases, they are obliged to sit themselves in judgement of the legality of user content.

For the free and open Internet, growing pressures to hold intermediaries liable for user content have, therefore, become an enormous threat. There are great variations in what is acceptable in different countries. Even in democratic countries, domestic legislation on freedom of expression is not always in line with international human rights law: restrictions on freedom of expression are often overly broad, and thus prone to misuse. And where intermediaries are made to asses the appropriateness of content themselves, we effectively see the privatisation of censorship.

Intermediary liability, therefore, has emerged as one of the greatest pressures working against freedom of expression online. It is also contributing in important measure to the balkanisation of the Internet. This undermines the empowering potential of the Internet.

Want to learn more about what intermediary liability is specifically? Read on to find out more.

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