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USA’s Legislative Proposal to redefine Intermediary Liability

October 13, 2020

By Bijit Das and Isheta Srivastava

Introduction

In last few years, there has been a steep growth of various forms of digital media like social media, e-commerce entities, internet service providers, etc. This change has given a new outlook to the legal landscape related to the duties, rights, and liabilities of these internet platforms. Today one of the most discussed legal issues across the globe is related to defining the parameters of liability of internet intermediaries.

Internet Intermediaries in simple words can be understood as organizations that bring together or facilitate transactions between third parties on the Internet.[1] With regards to its liabilities, initially most of the jurisdictions provided umbrella protection to the intermediaries considering they were just providing a platform for any kind of transaction to happen, though, this protection had some limitations.

However, with time the role of intermediaries has also evolved, and internet has also expanded its horizons. Due to this, the intermediaries are now more involved and are becoming a part of the transactions that happen on their portal. Also, the intermediaries are used as a platform to voice opinions or to express one’s creativity which may sometimes cross the boundaries of legality. In such a scenario, many jurisdictions are now reinterpreting the parameters of intermediary liability.

Redefining Intermediary Liability in USA – A Legislative Proposal reforming Section 230

As per reports, in a recent move, the United States Justice Department has recently recommended a legislative proposal seeking to reform legal immunity for internet companies[2]. The intention behind the proposal is to expand the accountability of internet intermediaries and make them more responsible regarding the subject matter of their platforms.

Currently, Section 230 of the Communications Decency Act provides legal immunity to the intermediaries in US. The sub clause (2) of the section states that[3]:

No provider or user of an interactive computer service shall be held liable on account of –

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The core purpose of Section 230 is to protect the owners of any “interactive computer service” from liability for anything posted by third parties. The idea was that such protection was necessary to encourage the emergence of new types of communications and services at the dawn of the Internet era.[4]

As per reports, this step was taken after the allegations of potential breaches of antitrust law, infringement suits against several big entities in US, including search and advertising giant, e-commerce giant etc.

The legislative proposal has suggested a series of reforms to ensure internet companies are transparent about their decisions when removing content and when they should be held responsible for speech they modify.[5] It also revises the existing definitions in Section 230 with more concrete wording that offers more guidance to users and the courts, and encourages online platforms to fight against illegal content and pushes for more clarity on federal actions of civil application.[6]

Attorney General William Barr said in a statement the administration was urging “Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate egregious criminal activity online.[7]

Intermediary Liability in India

The regulation of intermediaries in India gained momentum during early 90s, with the dawn of internet. The legal responsibility of an intermediary in India has traveled a journey, which started with an umbrella protection from any kind of liabilities.

Section 79 of the Information Technology Act, 2000 provides expansive protection (safe harbor) to intermediaries for third party content as long as they had no knowledge of its illegality or exercised due diligence. Further, in 2008, the amendment to information technology act made it mandatory for intermediaries to exercise due diligence to get protection under Section 79 of the Act.

In India, the jurisdiction related to intermediary liability is still at a nascent stage and is currently being interpreted on a case to case basis.

Conclusion

Though for the legislative proposal by the United States Justice Department to become a law would need congressional approval. It would be interesting to see how the legal landscape of internet intermediaries with progresses across jurisdictions and the balance between the intermediary protection and liabilities is struck.

Read more about intermediary liability below:

Intellectual Property Infringement and Intermediary Liability

Intermediary Liability in India

Intermediary Liability: SC says Intermediaries not protected under section 79 of the IT Act

Regulation of intermediaries in India

[1] https://www.igi-global.com/dictionary/intermediaries-in-e-commerce/53306

[2] https://economictimes.indiatimes.com/tech/internet/us-proposes-changes-in-legal-immunity-for-internet-platforms/articleshow/78287667.cms#:~:text=The%20US%20Justice%20Department%20unveiled,crack%20down%20on%20tech%20giants.

[3] http://www.columbia.edu/~mr2651/ecommerce3/2nd/statutes/CommunicationsDecencyAct.pdf

[4] https://tribune.com.pk/story/2265437/whats-in-the-law-protecting-internet-companies-and-can-trump-change-it

[5] https://gadgets.ndtv.com/internet/news/us-justice-department-internet-companies-legal-immunity-google-probe-donald-trump-2300354

[6] https://newstube.co.in/us-justice-department-proposes-changes-to-internet-platforms-immunity/

[7] https://economictimes.indiatimes.com/tech/internet/us-proposes-changes-in-legal-immunity-for-internet-platforms/articleshow/78287667.cms#:~:text=The%20US%20Justice%20Department%20unveiled,crack%20down%20on%20tech%20giants.

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