In the article “Impacts of Indirect Liability Regulations of Intermediaries in Copyright- Infringing Content on the Internet” by Ane Maria Pineda Cely talks about Internet service providers’ legal obligations. The service providers cannot extricate themselves from responsibility under any international law. In addition to being charged with the liability that may be observed in the European Union Models, they are also responsible for secondary culpability. As decentralized data flow in cyberspace has a detrimental effect on the development of culture and the economy, the US model has attempted to take a balanced approach to reducing or minimizing these possibilities. Several digital access-related treaties have been signed, but none of them make any explicit mention of the liability problem. It is a high time to address this issue on a global level, where all the countries are joining hands in determining the liability of the intermediaries in copyright infringement content. Copyright infringement is something which each country faces and due to which there is an economic loss to the country in return. This article’s recommendation for resolving the issue of increased liability loads is the creation of an international legislation on Internet service providers. (Cely, 2022)
According to this article, the idea of internet legislation is a nice step. But what next? Nothing is elaborated about the same. Like, what kind of things needs to be included in the international legislation. How the country’s will be benefited from this legislation. Also, is it necessary for the country’s to have their own law for the liability of intermediaries. So, all these things needs to be addressed, which are yet not discussed by any article.
Analysis
Till date, there has been no law on the global level to address the issue of liability of Internet Service Provider. There is a need for the same, but each country should have their own law to protect internet service provider. It is a global issue and requires attention around the globe. There is also a need to have a universal law on the liability of Internet Service Provider. As the internet has no boundaries, and there can be a conflict when the content is posted on an online platform and that platform is operating worldwide. Then there can be a conflict as to which country laws will be applicable.
Country’s needs to assure that the laws of their own country are not in contradiction with the global law if made in the future. Global Law should act like a constitution.
For some countries the content which is posted is not sensitive but for some it can be, this is when there is a universal law on the same. It can be decided by that law. Also, there has to be a judiciary at the global level who will deal with the matters if there is any kind of law infringement.
To address the issue, let us first discuss what is the meaning of internet service provider.
Internet Service Provider are intermediaries, is generally a corporation that offers both personal and commercial users access to the internet. ISPs enable their clients to do business, purchase online (shopping), communicate with their loved ones, and more. In general terms, they are the link between the copyright owners and the customers.
Intermediaries are defined in Information Technology Act, 2000 under Section 2 (1) (w) which states- with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes; (meity.gov.in, 2000)
Intermediary Functions
- send and renew data signals.
- keep records of the routes that can be taken through the network and internetwork.
- alert other devices to mistakes and communication problems. (Brown, 2020)
How do they affect democracy, human rights, and the rule of law?
Intermediaries affect democracy, as the meaning of democracy is a kind of government that is reliant on popular opinion. But, if we see in case of intermediaries they do what government ask them to do. If the government asks them to remove some content from the internet, they need to do the same, whether they want it or not. This contradicts the meaning of democracy as democracy is something that is done for the people by the people and to the people. But this is a kind of dictatorship because they do not have their own opinion and many a times people express their opinion about any political party, and if that is going to affect the government, they will ask the intermediaries to remove that content. There needs to be proper guidelines as to what needs to be removed.
What are the regulatory challenges faced by Intermediaries?
- On participatory networking sites in particular, the lines between middleman and content provider are becoming increasingly hazy, which may lead to more debatable concerns about objectivity and financial benefit from hosting or connecting activities.
- The necessity for specific safe harbors is called into question by intermediaries of new sorts or whose function has expanded (search engines, social networking sites). These relate to the many types of intermediary activities (hosting, conduit, connecting, etc.), as well as whether small and big intermediates require distinct regulations.
- Different pressures and interests exist when it comes to copyright, pornography, privacy, consumer protection, and security, raising concerns about the viability and desirableness of horizontal and “one-size-fits-all” regimes. (oecd.org, 2011)
- Boundaries difference, every country has their own laws with respect to the online platform. The content could be infringing the policies of one country but not another, which could be problematic for intermediaries. For Example, If any content is infringing the policies of YouTube, they will remove that content, but that same content was not infringing any policy of country India but of USA. Then it could be a problem for YouTube and its intermediaries to have different policies for different countries.
Liability on Internet Service Provider
Their liability generally arise when there is a copyright infringement. Copyright is given to the original creator to print, publish, perform or the film, musical material. Copyright infringement, in today’s time is a common thing. As copying the script of the movie or anything with the help of AI. When there is an infringement there is an economic loss as well as the creativity of the owner is something which is not given the due credit, which in return can stop the growth of the creators. As no individual wanted to work where they are not given due credit. It is a difficult task to track an infringement. It is generally impossible, expensive, and takes a lot of time. Downloading any content and uploading the same is an easy task, with the help of Technologies, AI infringement of the content have been increased.
This article only talks about that there should an international law on the liability of ISPs. To reduce the fragmentation and increase the uniformity. But nothing is said about the steps which each country should take to reduce the liability or protect them from the liability. The actual problems faced by them, the only thing mentioned is they are overloaded with liability.
In my opinion, each country should have their personal laws on the liability of ISPs and if there is any conflict in the law of 2 countries, then the international law on the same should be drafted. USA and Europe should lead the same. As, from the article one thing can be concluded that USA was the first country to make a law related to the liability of Intermediaries and Europe is a recent one, so they have a better understanding about the problems faced by ISPs.
- The first problem faced by ISPs is that they can be asked to remove the content even if they do not wish to from the online platform and it is not required to give the opportunity of being heard whose content they removed. To remove any content infringes the right to free access to internet of the users and the copyright owner faces financial loss. They are obliged to obey the order, which also infringes freedom of speech and expression. (internetfreedom.in, 2021)
- The other problem is that there is no proper law which talks about the liabilities of Internet Service Provider. The Self Harbour provision should be included by every country as this helps to eliminate liability in certain situations, provided certain conditions should be met. For example, the USA is the first country who consider their liability and act about the same.
- Th burden faced by Intermediaries is nowhere in the article described in a descriptive way. The only thing mentioned is that they are loaded with liabilities.
The intermediaries are burdened with so much work. Like, in India intermediaries need to appoint an officer for grievance redressal system. To takedown any content on the internet the time limit is very less, and intermediaries need to adhere to the same. These measures are given in The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 popularly knows as Intermediaries rule. But nothing is given about the penalties it is just mentioned that they will lose the penalty. Here, comes the problem when there is so much liability imposed on them the penalty should also be mentioned explicitly.
There is an urgent need to have a uniform law on intermediary liability. So, the things which should be explicitly there in the law in my opinion are: –
- Liabilities which intermediaries actually face and how can the law reduce the same, should be clearly mentioned. By liabilities I mean to say that burden on them.
- If there is a dispute between countries related to the intermediary’s liability, and there are some contradictory measures in the law of two countries. Then, international law measures should prevail, and both the countries should abide by the same.
- The provision of safe harbour should be included in the international law. If certain requirements are satisfied, Safe Harbour is a legal protection that allows parties to avoid or completely avoid legal or regulatory liability in specific circumstances. This protection is given in US law.
- In article it is argued most of the time that intermediaries need to deal with multiple laws, different countries have different laws so, they need to abide by them. Uniformity cannot be expected when the work is done internationally. So, this is not a correct argument for having an international law, there is need of an international law to solve the conflict between two countries. Each country has different culture and perception to look into the matter of liability on intermediaries.
- Countries should take appropriate measures, while making the laws or amending the laws on intermediaries. Like, intermediaries should be benefitted from that law. The law should revolve around benefitting them.
Conclusion
In this article, they talked about that there should be law for intermediaries, they are very overburdened with the work. But nowhere they mentioned what work they are overburdened of. Also, it was mentioned that there should be an international law to bring uniformity, as intermediaries needs to follow different countries law as it is a global work.
But, according to me each country should have their different laws, I agree uniformity is required but if we see from different perspective, each country has their own culture and understanding related to intermediaries. We cannot strike off and declare invalid different countries laws. But international law should be there if there is a conflict between two countries. In that case, international law should prevail, and countries need to obey to international law.
References
- Pineda cely ana maria, “Impacts of Indirect Liability Regulation of Intermediaries in Copyright-Infringing Content on the Internet” (ResearchGate. net June 2022) <https://www.researchgate.net/> accessed March 2023
- (meity.gov.in2000) <https://www.meity.gov.in/content/information-technology-act-2000> accessed March 2023
- Brown J, “Functions of Intermediaries” (knowledge burrow. comSeptember 2020) <https://knowledgeburrow.com/> accessed March 2023
- (Oecd.org2011) <https://www.oecd.org/> accessed March 2023
- (Internetfreedom.in2021) <https://internetfreedom.in/> accessed March 2023
Author: Yashika Malik is a student at Jindal Global Law School.
