Internet Intrermediaries In Internet Law

                      ABSTRACT

  In a world where the internet has permeated every facet of our lives the phenomenon of internet intermediaries has become widespread and now discussed in many circles of internet law. This essay seeks to discuss in internet intermediaries, their role, benefits and regulations that guide it in relation to internet law.

 

                        INTRODUCTION

Internet intermediaries are usually defined as organizations that aid communications and dealings in the internet. They are also entities that allow for the passing of information from one faction to the next. These organizations are first and foremost for-profit and function by harboring, providing admittance, convey and index content, commodities which trace their origin from third parties found in the internet (Riordan, Jaani 27). It is important to note that content producers are not included in the definition of intermediaries. Examples of internet intermediaries include domain name registrars, internet portals, E-Commerce mediators, payment systems for the internet and internet access and service providers (ISPs).

Moreover, some intermediaries are known to ban certain types of material usually outside the capacity scope of any internationally-recognized legitimate limitations on the freedom of expression. This problem is worsened by the lack of accountability in the way these limitations are implemented.

IMPORTANCE OF INTERNET INTERMEDIARIES

It is important to note that internet Intermediaries are an important aspect of the cyberspace as they end up empowering the end user. This is important as it is noteworthy that the internet has entered nearly all facets of life from medicine, to the economy and the whole society at large. These intermediaries have been instrumental in creating smooth progress of interactions and the various dealings between the third parties on the internet. The influence that these intermediaries have ends up swaying and deciding what online information or goods they will end up choosing. To add to this, internet intermediaries are responsible for facilitating the access to information and enable them get new prospects for social actions, speech and citizen involvement.

Liability limitations have also been helpful in making sure that there is growth and development of the Internet. These challenges of liability for Internet intermediaries have made it possible for these units and the internet economy in general to burgeon bringing forth noticeable growth. For example limitations of liability started in the late 1990s were complemented by self- and co-regulation initiatives and defend the institutions and regulations.

Thirdly, internet intermediaries are important as they bolster cyber security. This is done through the various security controls that are built in order to ensure that the cyber space is robust and also secure. ISPs in particular are important here as they help to maintain cyber security and a good example is the Australian Internet Security Initiative (ASIA) which is built to alert the consumers of any computers that are affected by malwares. This ensures that the internet is secure and free from malicious attacks from computer viruses and malwares.

The internet intermediaries also have another role of protecting the privacy of its users. The privacy of the users is one of the most important aspects of the internet and should also be upheld at all times. This is also an area of law that is regarded highly as private data that individuals have should always be protected. An example of a situation where the privacy of the user was protected was in Italy when a couple of students decided to poke fun at their disabled classmate and post the video online on a Google platform. As soon as Google was informed of this gross violation, the video was taken down immediately. Networking sites of late are in line with protection of children’s private data. Social media networking sites are required to possess an age verification system. This would ensure that children’s profiles are not be searchable and the default settings for children’s profiles should are private.

Protection of the consumer security is also a very important role played by these internet intermediaries (Solove, Daniel J and Paul M Schwartz 25). This can be done by preventing fraudulent e-mails, making sure that the buyers of the commodities use safe payment methods, consumers being given a means to assess the trustworthiness of the various prospective buyers, educating and supporting other users and being at the forefront in fighting identity theft and other fraudulent activities. The market should also be proactive and also always alert so as not to fall in the trap of fraudulent individuals looking to gain from individuals for example through identity theft. In the year 2012, the telephone operator Airtel India was ordered a user rs.15,000 (approximately USD 300) by a consumer forum to pay for ‘harassing’ a customer and for disconnecting the call services to the user’s phone for approximately 24 days

To add to this, he other security methods such as CVV2 have a three digit number at the back of the payment card. This which has prevented a considerable amount of attacks from fraudsters. Visa’s 3D Secure has an added an extra tier of security where the consumer has to go through a rigorous authentication process before being able to make any payment. Accountability through the courts is also an important component here as given in the following example when in May 2011 an Egyptian Court issued a fine of $90 million to the former President Hosni Mubarak and Vodafone, Mobinil and Etisalat. This particular ruling held that the president, the prime minister and interior minister were responsible for ruins to the economy and the ISPs had gone against the Egyptian Constitution when it decided to comply with a demand that was not accompanied with a legally issued warrant.

 

REGULATIONS THAT GUIDE INTERNET INTERMEDIARIES

It is important to note that online platforms that have been created can be used in a positive legitimate way such as for educational purposes, trade and self expression. Nonetheless, there are individuals who may use these platforms for illegitimate ends such as harassment, defamation and copyright infringement. The column separating the legitimacy and the illegitimacy reason is influenced by a country’s religious, cultural or political context. This thus creates a limitation to the freedom of expression to many individuals around the world.

Intermediaries can be in some instances held criminally responsible for user material that others would view as contravening privacy or defamation laws. In those countries where this is the situation on the ground, the firms come under a lot of pressure to carry out their own monitoring and sieving to avoid possible blow backs. This in essence contributes to a process of state-sanctioned self-regulation some governments may depend a lot on the private sector firms  to regulate online material without public transparency.

Types of limitations would have to start with defamation. Defamation laws often seek to dissuade unprovoked attacks on an individual’s reputation. Organization for Security and Co-operation in Europe (OSCE) ,UNESCO, the UN Special Rapporteur and the Organization of American States have all called for the decriminalization of this crime but defamation remains criminalized in all of the countries examined in this essay except the United Kingdom and the United States.

National and public security is also a limitation to internet intermediaries in some countries. In the Peoples Republic of China for instance, Article 15 of the ‘Measures on the Administration of Internet Information Services’, which  was circulated by the State Council in the year 2000, insisted on what  came to be known as the ‘nine forbidden content categories’ for online services in China. The groupings include speech that ‘harms the dignity or interests of the State’, or ‘disseminates rumours, disturbs social order or disrupts social stability’, or ‘Sabotages State religious policy or propagates heretical teachings or feudal superstitions’ (MacKinnon, Rebecca et al. 32). Another country with such stringent legislation is Egypt. This North State curbs seditious speech together with speech that is considered offensive of domestic and foreign governmental establishments. It is common knowledge that the Egyptian Parliament has been seriously considering an anti-terrorism legislation that would make it possible for internet firms and forums to be blocked from the country for ‘endangering public order.

In Kenya, Hate Speech is a criminal offence and is prohibited. This may be well due to the Post-Poll violence that rocked the country after the disputed 2007 elections. It was observed that the careless talk and ethnic slurs that permeated the country during this period was a precursor to the violent ethnic cleansing that followed.As per the 2010 Constitution of Kenya, it prohibits incitement to violence, hate speech, advocacy of hatred that constitutes ethnic incitement or the vilification of others. Article 13 of the National Cohesion and Integration Act 2008 also goes ahead to prohibits using ‘threatening, abusive or insulting words or behavior with the intention of ‘stir[ring] up ethnic hatred’ (Delta, George B and Jeffrey H Matsuura 35)  . It is however noteworthy that the law here only mentions ethnic hatred and there is no mention of religion, gender, nationality or sexual orientation.

Russia has taken great leaps forward in protecting Intellectual property where in the year 2013 the ‘Anti-piracy law’ (Federal Law No. 187-FZ) was implemented and a couple of legal revisions which would affect internet intermediaries effected. For a start, Russia’s legal code had a definition of ‘information intermediaries’. The here law went further to defines the functions that would be performed by the various types of ‘information intermediaries ; those that would be transferring the numerous content via information communication channels that would also include the internet space. Individuals in charge of providing chance to put up material or information are required to receive the content initially.

This piece of legislation also goes ahead to outlines how these particular actions can “avoid liability for intellectual property right infringement”, which would also entail ‘safe harbor actions’. This may entail not starting the transmission of material before ascertaining the receiver of the content, not changing the material while giving services, except for the changes necessary. There were also the safe harbor requirements which would act as prompt actions in  stopping any form of infringement upon being given an alert by  the legitimate rights-holders. These new updated laws in essence require the intermediaries to firewall, block or take down material upon receiving an order from Roskomnadzor, Russia’s communications regulator whose main responsibility is monitoring online material. Penalties for failure to remove or block the requested materials are adverse and in other instances the whole website may be blocked.

In India, blasphemy and blasphemous speech, though not fully defined, is not permitted under the Information Technology Intermediaries Guidelines Rules of 2011.It is important to note that the Indian Penal Code at no time uses the word ‘blasphemy’ but  nonetheless criminalizes ‘deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs’. In Egypt, blasphemy is also considered criminal offence which is punishable with up to five years in prison, for any individual who ‘makes use of religion in spreading, either by words, or in writing extreme ideas for the sole  purpose of provoking strife by taunting or insulting a heavenly religion or a sect that follows it with the purpose damaging national cohesion.’

The UN Special Rapporteur La Rue in his 2011 report ,mentioned that limitations are only compatible with the set international human rights standards only when they meet three crucial conditions which were; the precincts must be rule-based, given by law and executed in a transparent and banal manner.

In United Kingdom where there is hardly any formal definition of what an internet intermediary actually is. Nonetheless, what is referred to as the ‘information society service provider’ is distinct and also includes ISPs and various telecommunication companies that are present in this country. Moreover, it also important to note that there is no legislation in the UK that concisely deals with the liability of internet intermediaries in essence. In place of this are usually rules that by fact deal with such issues and hence cover this gap that would have been left. A case in point is that in the UK, the internet services are absolved from blame if there is ever a case of defamation. If they move on to a claimant , then the identity of the individual who has put up the defamatory content on their website in some  instances under some instances may benefit from being absolved of liability for contravening  copyright. Generally, the courts can curtail access to content that is in breach and in contempt of court laws, or denigrates, or violates privacy.

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