Legal and Ethical Implications of Regulating Online Commentary

//CGCS Media Wire, with thanks and permission, brings a recent article from Marissa Moran and Douglas Griffin from Albany Associates’ blog the Notebook. This piece examines the difficulties that come from regulation of online user commentary, from a legal perspective as well as a human rights perspective. This post can be found here, as posted 11/12/2012.

With more individuals connecting to the Internet every day and new content being uploaded faster than anyone can consume it, the challenge of monitoring comments on news websites, social networks and blogs is formidable for all parties.  States are still in the early stages of understanding how best to approach general Internet regulation, and many attempts to legislate online content interfere with traditional protections of freedom of expression.  Not only is the jurisdiction of online regulation difficult to delineate due to international hosting sites and global sharing mechanisms, but also the ability for users to post anonymous comments creates the problem of whom to hold liable when the postings contain illegal content.

There are persistent debates across countries over whether Internet Service Providers (ISPs, companies or organizations that provide users access to the Internet, often through a cable or ADSL company), hosting companies (such as Yahoo and WordPress) or social media platforms (like Facebook and Twitter) should be considered primary publishers or only distributors of third party content.  In some countries, like Estonia and Jordan, when users post illegal statements, whether incitement or defamation, in the commentary section of a news site, the news site or hosting company could be held liable for the offense for not removing the post upon request.  In cases when the user is anonymous, this situation becomes more problematic.  This ‘notice-based take-down procedure’ has developed across Europe following the European Union Directive on Electronic Commerce (July 2000).  The EU Directive makes ISPs and hosting companies liable within limits and after being notified of illegal content on their sites.  If someone issues a complaint about a defamatory statement in an online comment, for example, the site manager must flag it with a notice next to the original comment and remove it if the content is indeed defamation or illegal.  Currently, US-based service providers have more protection from liability for content published by a third party than do those in Europe.

The International Telecommunications Union (ITU), a United Nations agency, decides how to address the issues of Internet governance and determines the roles and responsibilities of telecommunications companies, content providers and ISPs.  However, major international players like the European Union and the United States, which host the world’s largest and most lucrative private Internet companies, oppose increasing the ITU’s power over Internet regulation, both in the areas of finances and content, for the sake of freedom and net neutrality.  In most Western European countries, online comments are self-regulated or co-regulated, guided by laws that require news sites or blog owners to manage comments.  Blog hosts like WordPress have moderating tools to filter comments and require commenters to provide their names and e-mail addresses.

As mentioned above, the implications of self- and co-regulation in the digital commentary sphere are vast, with anonymous spammers and undetectable software making it nearly impossible to monitor every single comment that violates existing law.  But laws that try to incriminate second party sites (ISPs and hosting companies) for third party offenses when the host is not responsible for the content posted by unknown users raise issues of justice and fairness.  These liability clauses in relation to notice and take-down provisions were unclear and complex, and there are often differences in interpretation of the EU Directive on which these national provisions are based.[1] Because of this, the European Commission held a public consultation on the Directive in late 2011 and published the results in early 2012.  These comments did not reject ‘intermediary liability’ for ISPs and hosting companies, but instead clarified ambiguity in the Directive and touched upon how to address illegal online content, largely within the context of intellectual property rights…

For the rest of the article in full, please click here to visit Albany Associates’ blog, the Notebook.

// Article by Marissa Moran, Albany Research Associate and Douglas Griffin, Director of Albany Associates

This is an excerpt from a chapter to be published in a guidebook for journalists by the OSCE Representative on Freedom of the Media.

[1] OSCE Report:  Freedom of Expression on the Internet, 2011, pg 32

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