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.   Read 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.

Posts & Reports

  • The naked truth: Why banning online pornography is a bad idea

    With inputs from Richa Kaul Padte In recent months, the calls for a complete ban on pornography, as well as for the criminalisation of consumption of pornography, have fast been growing louder, and both Parliament and the Supreme Court are now studying such proposals. To their credit, the government has been careful in its responses …   More

    02 Aug 2013

  • Criminalising dissent? An analysis of the application of criminal law to speech on the Internet through case studies

    This research was co-authored by Shehla Rashid Shora and Anja Kovacs. Over the past two years or so, news reports of people getting arrested for Facebook posts or tweets have managed to stir a public debate about laws governing the Internet in India. With the arrests of Ambikesh Mahapatra, Aseem Trivedi and Shaheen Dhada, the issue of criminalisation of online speech and expression has caught mainstream attention. But the shape and details of this phenomenon remain surprisingly underexamined. On which occasions does the application of criminal law stir controversies? Who are the actors involved in such cases? This study seeks to make a beginning to expanding our understanding of these under-researched issues in the Indian context, by examining in depth seven famous Indian cases in which criminal law has controversially been drawn on in an attempt to stifle free speech on the Internet.

    Report 30 Apr 2013

  • DoT-blocked IIPM URLs: Analysis and history

    In a move that has sparked renewed furore among netizens, the Department of Telecommunications (DoT) of the Government of India (GOI) has ordered a blocking of 78 URLs, 73 of which are web pages related to the Indian Institute of Planning and Management (IIPM). Medianama today reported on the blocking order which was signed by …   More

    15 Feb 2013

  • Section 66A, sexual harassment and women’s rights

    Kapil Sibal, Minister of Communications and Information Technology, has argued that section 66A of the IT (Amendment) Act, 2008 is needed to fight harrassment and abuse of women online. Is he correct? What is Section 66A?  Section 66A of the IT (Amendment) Act, 2008 prohibits the sending of offensive messages though a communication device (i.e. …   More

    10 Dec 2012

  • Are we breaking up the Internet, one country at a time?

    In preparation for the Stockholm Internet Forum, Anja Kovacs was asked to submit a written contribution, detailing what she believes is the biggest emerging threat to online freedom. Here is what she wrote. “While it could be argued that a range of new threats to online freedom have arisen in recent years, there is one …   More

    24 Apr 2012

  • Democracy and transparency

    BY VIDYUT - AAM JANATA In this Make Blog post, Vidyut reflects on the growing censorship in the world and its negative effect on the quality of democracies everywhere. In this light, she also analyses the devastatingly chilling effect the IT Rules can have in India in particular. And asks you to act. Now. Read …   More

    15 Apr 2012

  • Bloggers and the IT Rules: A blogger’s perspective

    BY INDIAN HOMEMAKER In the previous post, Apar Gupta, a litigator, explained the rights and responsibilities that bloggers have under the legal framework in India. In this post, Indian Homemaker provides a blogger’s perspective on the Intermediary Guidelines Rules, or IT Rules, and finds… that they are impossible to follow. Read on to find how …   More

    26 Mar 2012

  • Bloggers and the law: Five points to keep in mind

    BY APAR GUPTA - INDIAN LAW AND TECHNOLOGY BLOG Apar Gupta is a litigator (and blogger!) based in New Delhi. We invited him to join Make Blog Not War as one of the trainers. His brief: to help the bloggers understand the legal framework that governs their activities. In the blog post below, Apar gives …   More

    25 Mar 2012

  • The Internet censorship saga in India

    BY SHOBHA SV - I, ME AND MEDIA In this post for Make Blog Not War, Shobha SV provides a sweeping overview of the Indian government’s attempts to censor the Internet in recent years, and the valiant efforts of business and society alike to resist. You can read the original post, first published on 29 …   More

    21 Mar 2012

  • Some thoughts on #MakeBlog Not War

    BY VIDYUT - AAM JANATA Today, we kick of our series of blogposts on Internet censorship in India from the #Makebloggers with a post by Vidyut, who reflects on the parental attitude inherent in censorship, whether exercised by the family or the government alike. This post was first published on Vidyut’s website, Aam Janata, on …   More

    15 Mar 2012

  • Meet the #MakeBloggers!

    On 25 February 2012, the Internet Democracy Project organised Make Blog Not War - A Freedom of Expression Training for Bloggers. If you would like to get a glance of what we did that day, have a look at the agenda. More importantly, however, you can meet all the #Makebloggers below. Vidyut at AamJanata Amruta …   More

    14 Mar 2012

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