Internet Way of Networking Strengthening the Internet

Mapping Intermediary Liability in Latin America

Thanks to our Chapters in Latin America, we now have a clearer map of the intermediary liability regulatory landscape across the region.

Intermediary liability answers the question, “Should Internet intermediaries (ISPs, web hosting and cloud services, social media platforms, etc.)  be liable for content posted or for actions performed by others, such as, for example, their users?”

The success of the Internet depends on intermediary liability regimes that protect Internet providers – by ensuring responsibility for user behavior is on the users themselves, not on the intermediaries upon which they rely (both at the infrastructure and content layers).

The way legal frameworks deal with intermediary liability around the world can impact the Internet way of networking in different ways.

In some countries, intermediary liability legislation is well known: the 1996 US Communications Decency Act (Section 230) and the Brazilian Internet Bill of Rights, for example. But in much of the world it is covered by other more general-purpose regulations, such as tort law, consumer protection law, and child protection law.

We asked our local community to help us map and monitor the current regimes that apply to Internet intermediaries in their countries, so that our work can ensure that policies and regulations related to the matter keep supporting a healthy foundation for the Internet.

The questionnaire we developed in partnership with Chapter leaders was responded to by people from 18 Latin American countries.[1] The responses generated country profiles with detailed descriptions of rules and regulations that can affect intermediary liability in Bolivia, Brazil, Colombia, Chile, the Dominican Republic, Ecuador, Mexico, and Venezuela.

The country profiles provide an up-to-date snapshot of the complex regulatory landscape. The majority of countries still rely on general administrative, civil, and criminal norms that apply more or less uniformly to Internet intermediaries.

Copyright regimes and editorial liability are commonly applied, even if they predate the Internet age. General telecommunications regulations can also comprise rules that apply to Internet intermediaries. Chile is a highlight due to its longstanding network neutrality rules, which impose penalties for intermediaries who interfere with the free flow of data at the infrastructure level.

Brazil is the only country among those listed above that has a specialized intermediary liability regime designed for Internet access providers and Internet application providers. The “Marco Civil” establishes exemptions to providers’ liability in relation to third-party content. Access providers are always exempt from liability for user content and behavior.

Our  mapping exercise is still underway. More country profiles produced by LAC Chapter members are expected for the upcoming months.

The process went beyond gathering up-to-date information. It has also helped us identify people who can promote and defend the importance of strong intermediary liability regimes for the Internet Way of Networking project in support of future community engagement and advocacy.

Based on what we have accomplished so far, we had some ideas on how the Internet Society can keep growing its knowledge base on intermediary liability – with the help of its global community. This could include:

  • Country or Chapter-level working groups to review and expand individual country profiles
  • Additional training and work to inspire and collaborate with other Chapters in the region
  • Additional activities and resources around the topic of intermediary liability
  • Replication of the process in other regions
  • Leveraging our community to serve as a valuable source of input to other mapping exercises, such as the World Intermediary Liability Map

Learn more about the Internet Way of Networking!

We would like to thank the following people for having committed their time and knowledge to help us with this collaborative effort: Roberto Zambrana Flores; Félix Fabian Espinoza Valencia; Flávio R. Wagner; Giovanna Michelato; Lorena Donoso Abarca; German M Fajardo Muriel; César Moliné; Alejandro Pisanty; Viviana Da Silva. Additionally, Nancy Quiros and Christian O’Flaherty contributed to this article.

We would also like to thank these people for their contributions: Graciela Mariani; Hector Ariel Manoff; José Ignacio Alvarez-Hamelin; R  Danton Nunes; Eric Alexander – Venturas; Jorge Augusto Ottoni Nobre de Oliveira; Leonardo Lins;   Miguel Medina; Willy Maurer; Mauricio Alarcón Salvador; Kelvin Atiencia; Ethel Monge de Kuri; Yesenia Granillo; Fernando Manuel Morales Rodas; Jose Anibal Silva de los Angeles; Ernesto Pineda; Sandy Karyna Palma Rodríguez;  Ana Laura Leon; Francisco Javier Huerta Gijón; Simon Perez C.; Haydee Almiron; Dra. Dámaris Mercado Martínez; Alicia Castillo; Eduardo Tomé and Jan Alvarado.

[1] Argentina, Bolívia, Brasil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Puerto Rico, República Dominicana, Uruguay, Venezuela.

Image by delfi de la Rua via Unsplash

Encryption Strengthening the Internet

Making Intermediaries Liable for Encrypted Content Breaks Trust and Security

In December 2018, the Indian Ministry of Electronics & Information Technology (MeitY) proposed a significant change to its intermediary rules. The draft Information Technology  [Intermediaries Guidelines (Amendment) Rules] 2018 seeks to tie tech platforms’ (e.g., social media) protections from liability to an obligation to monitor and filter their users’ content. One of the proposed obligations is to ensure the traceability of messages, even if a service is end-to-end encrypted.

India is just one of many countries around the world experimenting with the idea that Internet intermediaries – specifically social media companies, like Facebook and Twitter – should no longer have immunity from liability for the content shared by their users. Other examples include the U.S. Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (the EARN IT Act), and the recent U.S. Executive Order on Preventing Online Censorship.

The motivation for changing the status quo varies, from wanting traceability of messages to counter the spread of disinformation or CSEM, to stopping objectionable content from being spread on social media, to preventing political messages from being labeled (e.g., as “misleading information”). Similarly, the approaches being considered to achieve this vary, ranging from outright removal of immunity, to conditional immunity (i.e., earned immunity), to a positive “duty of care.” But, no matter the motivation or the approach, the consequences for the future of the Internet and its security remain the same.

Make no mistake, proposals to change intermediary liability to force content monitoring or traceability on end-to-end encrypted services will undermine security on the Internet. Which is why we’ve produced a fact sheet, Intermediaries and Encryption, to explain why pressuring intermediaries to weaken security through liability is harmful – and counterproductive.

Trump’s Social Media Executive Order: Legal, Ethical, Smart?
In the wake of the United States Executive Order on Preventing Online Censorship, the Internet Society will host a virtual event focused on the broader issue of intermediary liability. Join experts as they discuss what it means for the future of speech and platforms online. Register for the event, which takes place Tuesday, June 9th at 1400 UTC!

We must resist approaches that require service providers to override people’s ability to secure their information and interactions. To do so places individuals and organizations at greater risk – with no guarantee of achieving the intended outcome.

It’s especially important now that we help keep people, infrastructure, and countries secure online. And we must protect the Internet as a global vehicle for innovation, education, and social and economic progress. We can do that with strong encryption policies and practices.

Read our fact sheet, Intermediaries and Encryption, and learn more about the unintended consequences that intermediary liability reform could have on the security of the Internet.

To learn more about the ways encryption is being undermined, read our other fact sheets.

Internet Way of Networking Strengthening the Internet

Playing Politics with Section 230 Makes the Internet Weaker, Not Stronger

This opinion piece was originally published in The Hill.

Thursday the president of the United States signed an executive order that aims to address the liability regime of social media companies. A wide variety of reports have highlighted the problems with this move, but there is one problem that we find especially troubling: the danger of politicizing what is fundamentally a legal debate around party lines.

The president needs to stay out of this debate.

The Internet and politics have always had an awkward relationship. There have been numerous attempts to bring the Internet into mainstream politics over the years, most of which have been unsuccessful. The main reason is that the Internet is not a static “thing,” but a model for how networks and computers can interconnect through voluntary collaboration. A key characteristic of this model is that it’s decentralized, which means it doesn’t have a central point of control that dictates how the Internet should evolve. There is no switch that one can turn on and off, and as soon as policymakers or regulators try to impose one they inevitably chip away at the Internet itself. This characteristic has always been its most powerful asset, and the reason it has been an infinite source of innovation and growth – from the Web to ever-evolving smart devices, homes, etc. This lack of central control is a feature of the Internet, not a bug!

Trump’s Social Media Executive Order: Legal, Ethical, Smart?
In the wake of the United States Executive Order on Preventing Online Censorship, the Internet Society will host a virtual event focused on the broader issue of intermediary liability. Join experts as they discuss what it means for the future of speech and platforms online. Register for the event, which takes place Tuesday, June 9th at 1400 ET!

Most of the early legal frameworks that have been implemented in the Internet reflect this apolitical premise, albeit at different levels and to different degrees. But there is really no other law that does this as gracefully as Section 230 of the Communications Decency Act in the United States, which undergirds “intermediary liability” online.

Online intermediary liability protection first emerged in the United States in 1995 as a policy discussion regarding the scope of responsibility intermediaries should have. At the time, there was no Facebook or Twitter, so the law was aimed at services like CompuServe, Prodigy, and AOL. However, it set the tone for all future services and would later be exported to the world as one of the most positive Internet legal developments. The question was simple: should intermediaries be liable for content posted using their services or for actions performed by third parties, i.e. their users?

This question would fundamentally shape the future of the Internet. It discouraged attempts of centralized control because it did not force providers to perform functions they were never originally supposed to do. Similar to how telecommunications services are not responsible for the things phone users say over the phone, it was clear that online intermediaries and service providers would need similar commonsense restrictions on what they could be liable for.

Immunity from liability ensures a level playing field and provides autonomy to a diverse set of actors to perform their intended functions. In this context, Section 230 provided predictability in the Internet’s highly unpredictable environment. No one can predict the next innovation; the Internet is designed this way. The Internet’s highly unpredictable environment can only unfold to its full potential if it operates within a legal framework that is obvious in its intention and unsurprising in its outcomes. Section 230 does this. Politicizing it would reverse years of such predictability and could place the Internet’s future potential in jeopardy.

With this in mind, one can see how the executive order is problematic, setting in motion a dangerous precedent both for the Internet and speech. The problem is that a lot of the provisions in this order appear to be what Stanford’s Director of Intermediary Liability, Daphne Keller, calls “atmospheric” – politically driven questions that should not be part of the legal debate related to the scope of intermediary liability protections. They constitute a distraction, which could cause a series of unintended consequences for the evolution of the Internet.

While conversations about the evolving scope of Section 230 are healthy, they should not be based on fashionable political motivations. Section 230 has a historical track record of promoting innovation and creativity online. By separating it from partisan politics, we can ensure that these benefits are retained.

Image by Leon Seibert via Unsplash

Human Rights Internet Governance

The role of Internet intermediaries in fostering online freedoms

In the aftermath of the Paris attacks against Charlie Hebdo, voices have raised the issue of the role of web platforms, or Internet intermediaries, in supporting terrorist acts and ideology. In this specific case, some have inquired whether the French government should be allowed to shut down websites without the intervention of a Court order. 

The debate is still unfolding today. It raises the question of the role of Internet intermediaries and how their operations are affected by different legal frameworks and cultural contexts. 

The recently published UNESCO report entitled Fostering Freedom Online: The Role of Internet Intermediaries is enlightening in this regard.

This comprehensive research, led by a team of 16 international researchers, sheds light on how Internet intermediaries – services that mediate online communication and enable various forms of online expression – both foster and restrict freedom of expression across a range of jurisdictions, circumstances, technologies, and business models.

Results are informed by a set of cases studies covering three categories of intermediaries (search engines, social networks, Internet service providers) across 10 countries (UK, Germany, Egypt, Brazil, India, Kenya, US, China, Russia, Hungary)

Among other findings, the study highlights the increasing number of state requests and injunctions made to intermediaries, which, in parallel, has led many companies to publish transparency reports.

Convinced that well documented research is a valuable addition to the debate, ISOC supported the development of this study. We encourage you to read it and hope it will bring useful evidence on this issue.