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You Have the Right to Remain Silent
http://editors.cis-india.org/internet-governance/blog/your-right-to-remain-silent
<b>India has a long history of censorship that it justifies in the name of national security. But new laws governing the Internet are unreasonable and — given the multitude of online voices — poorly thought out, argues Anja Kovacs in this article published in the Sunday Guardian on 17 April 2011.</b>
<p>In March 2011, Indian media - both social and traditional - was ablaze
with fears that a new set of rules, proposed to complement the IT
(Amendment) Act 2008, would thwart the freedom of expression of India's
bloggers: contrary to standard international practice, the Intermediary
Due Dilligence Rules seemed intent on making bloggers responsible for
comments made by readers on their site. Only a few weeks earlier, the
threat of online censorship had manifested itself in a different form:
although the block was implemented unevenly, mobile applications market
space Mobango, bulk SMS provider Clickatell, hacking-related portal
Zone-H.com and blogs hosted on Typepad were suddenly no longer
accessible for most Indian netizens, without warning or explanation.</p>
<p>Censorship in India is nothing new. At the time of Independence,
there was widespread fear among its lawmakers that unrestricted freedom
of expression could become a barrier to the social reforms necessary to
put the country on Nehru's path to development – particularly as the
memory of Partition continued to be vivid. Although freedom of
expression is guaranteed by the Constitution, it is therefore subject to
a fairly extensive list of so-called "reasonable" restrictions: the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.
But while this long list might have made sense at the time of Partition,
in the mature democracy that India has now become, its existence, and
the numerous opportunities for censorship and surveillance that it has
enabled or justified, seems out of place. Indeed, though all these
restrictions in themselves are considered acceptable internationally,
there are few other democratic states that include all of them in the
basic laws of their land.</p>
<p>An appetite for censorship does not only exist among India's
legislature and judiciary, however. Especially since the early nineties,
instances of vigilante groups destroying art, preventing film
screenings, or even attacking offending artists, writers and editors
have become noteworthy for their regularity. But it is worth noting that
even more progressive sections of society have not been averse to
censorship: for example, section of the Indian feminist movement have
voiced strong support for the Indecent Representation of Women Act that
seeks to censor images of women which are derogatory, denigrating or
likely to corrupt public morality.</p>
<p>What connects all these efforts? A belief that suppressing speech and
opinions makes it possible to contain the conflicts that emanate from
India's tremendous diversity, while simultaneously ensuring its
homogenous moral as much as political development. But if the advent of
satellite television already revealed the vulnerabilities of this
strategy, the Internet has made clear that in the long term, it is
simply untenable. It is not just that the authors of a speech act may
not be residents of India; it is that everybody can now become an
author, infinitely multiplying the number of expressions that are
produced each year and that thus could come within the Law's ambit. In
this context, even if it may still have a role, suppression clearly can
no longer be the preferred or even dominant technology of choice to
manage disagreements. What is urgently needed is the building of a much
stronger culture of respectful disagreement and debate within and across
the country's many social groups. If more and more people are now
getting an opportunity to speak, what we need to make sure is that they
end up having a conversation.</p>
<p>Yet the government of India so far has mostly continued on the beaten
track, putting into place a range of legislations and policies to
meticulously monitor and police the freedom of expression of netizens
within its borders. Thus, for example, section 66F(1)(B) of the IT
(Amendment) Act 2008 defines "cyberterrorism" so broadly as to include
the unauthorised access to information on a computer with a belief that
that information may be used to cause injury to...decency or morality.
The suggested sentence may extend to imprisonment for life. The proposed
Intermediary Due Dilligence Rules 2011 privatise the responsibility for
censorship by making intermediaries responsible for all content that
they host or store, putting unprecedented power over our acts of speech
into the hands of private bodies. The proposed Cyber Cafe Rules 2011
order that children who do not possess a photo identity card need to be
accompanied by an adult who does, constraining the Internet access of
crores of young people among the less advantaged sections of society in
particular. And while the US and other Western countries continue to
debate the desireability of an Internet Kill Switch, the Indian
government obtained this prerogative through section 69A of the IT
(Amendment Act) 2008 years ago.</p>
<p>Such measures are given extra teeth by being paired with unprecedented
systems of surveillance. For example, there are proposals on the table
that make it obligatory for telecommunication carriers and manufacturers
of telecommunications equipment to ensure their equipment and services
have built-in surveillance capabilities. While at present, records are
only kept if there is a specific requirement by intelligence or security
agencies, the Intelligence Bureau has proposed that ISPs keep a record
of all online activities of all customers for at least six months. The
IB has also suggested putting into place a unique identification system
for all Internet users, whereby they would be required to submit some
form of online identification every time they go online.</p>
<p>Proponents of such legislation often point to the new threats to
safety and security that the Internet poses to defend these measures,
and it is indeed a core obligation of any state to ensure the safety of
its citizens. But the hallmark of a democracy is that it carefully
balances any measures to do so with the continued guarantee of its
citizens' fundamental rights. Despite the enormous changes and
challenges that the Internet brings for freedom of expression
everywhere, such an exercise seems to sadly not yet have been
systematically undertaken in India so far.</p>
<p>The recent blocking of websites with which we started this article
reflects the urgent need to do so. In response to RTI applications by
the Centre for Internet and Society and Medianama, the Department of
Information Technology, which is authorised to order such blocks,
admitted to blocking Zone-H, but not any of the other websites affected
earlier this year. In an interview with The Hindu, the Department of
Telecommunication too had denied ordering the blocking of access,
despite the fact that some users trying to access Typepad had reported
seeing the message "this site has been blocked as per request by
Department of Telecom" on their screen. In the mean time, Clickatell and
Mobango remain inaccessible for this author at the time of writing.
That we continue to be in the dark as to why this is so in the world's
largest democracy deserves to urgently become a rallying point.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/your-right-to-remain-silent'>http://editors.cis-india.org/internet-governance/blog/your-right-to-remain-silent</a>
</p>
No publisheranjaFreedom of Speech and Expressionhuman rightsInternet GovernanceCensorship2011-08-02T07:55:22ZBlog EntryCIS Report on Legal and Policy Implications of Autonomous Weapons Systems
http://editors.cis-india.org/internet-governance/blog/legal-and-policy-implications-of-autonomous-weapons-systems-1
<b></b>
<p> </p>
<p> <span id="docs-internal-guid-84c0c475-7fff-97fa-8ad9-9325cbd3eb3a">Link to full report: </span> <a href="https://cis-india.org/internet-governance/legal-and-policy-implications-of-autonomous-weapons-systems">https://cis-india.org/internet-governance/legal-and-policy-implications-of-autonomous-weapons-systems</a></p>
<p>Wars have been a part of human existence from the very beginning. However, the evolution of civilization has led to the evolution of wars. As a society, our discourse is now centred around on how this new generation of wars is best fought rather than whether at all to fight them. This inevitability of war has further led countries to develop means and methods of warfare, for inevitability of war is only acceptable when it is accompanied by the inevitability of victory. Autonomous Weapon Systems (AWS) or Lethal Autonomous Weapons Systems (LAWS) have, in recent times, sparked a global debate regarding what is being called the future of technology: artificial intelligence. In the backdrop of revolutionizing wars, AWS are being developed by certain countries to gain an edge over the others, forcing others to participate in the arms race of the 21st century in order to prevent asymmetric development of warfare. The international community must now contemplate the legal, moral and ethical implications of further developing existing automated weapons and giving them more autonomy than ever before. </p>
<p> It is to ally such concerns that a Group of Governmental Experts (GGE) was convened by the United Nations Convention on Certain Conventional Weapons (UN CCW) in December 2016, clearly demonstrating the global interest in the issue at hand. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects or the UN CCW was established with the aim of restricting weapons considered to cause unnecessary suffering and impact civilians disproportionately and indiscriminately. </p>
<p> <br /><strong>This paper is divided into 4 Chapters. </strong></p>
<p><strong>Chapter I</strong> authored by Anoushka Soni defines and differentiates between certain key terms imperative for a better understanding of autonomous weapon systems in all its technicalities. Further, the Chapter also provides a broad overview of the difference in existing state practice by reviewing the lack of universality of a definition for autonomous weapons. </p>
<p><strong>Chapter II</strong> also authored by Anoushka Soni analyses autonomous weapons from the perspective of international humanitarian law. It first contemplates the prima facie illegality of autonomous weapons, and subsequently focuses on their lawful use with regard to the principles of distinction, proportionality and military necessity and the conclusion provides a normative look at the way forward. </p>
<p><strong>Chapter III</strong> authored by Elizabeth Dominic goes into the question of accountability and redress and evaluates models of criminal and civil liability in case autonomous weapons systems go wrong.</p>
<p><strong>Chapter IV</strong> authored by Elizabeth Dominic evaluates the role of the private sector in the development, trade and policy framework on autonomous weapons systems around the world.</p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/legal-and-policy-implications-of-autonomous-weapons-systems-1'>http://editors.cis-india.org/internet-governance/blog/legal-and-policy-implications-of-autonomous-weapons-systems-1</a>
</p>
No publisherAnoushka Soni, Elizabeth Dominichuman rightsInternet LawInternational RelationsAutonomous weapons2021-03-22T05:31:18ZBlog EntryBeyond Access as Inclusion
http://editors.cis-india.org/internet-governance/blog/beyond-access-as-inclusion
<b>On 13 September, the day before the fifth Internet Governance Forum opens, CIS is coorganising in Vilnius a meeting on Internet governance and human rights. One of the main aims of this meeting is to call attention to the crucial, yet in Internet governance often neglected, indivisibility of rights. In this blog post, Anja Kovacs uses this lens to illustrate how it can broaden as well reinvigorate our understanding of what remains one of the most pressing issues in Internet governance in developing countries to this day: that of access to the Internet.</b>
<p align="JUSTIFY">One of the most attractive characteristics of the
Internet – and perhaps also one of the most debated ones – is its
empowering, democratising potential. In expositions in favour of
access to the Internet for all, this potential certainly often plays
a central role: as the Internet can help us to make our societies
more open, more inclusive, and more democratic, everybody should be
able to reap the fruits of this technology, it is argued. In other
words, in debates on access to the Internet, most of us take as our
<em>starting point</em> the desirability of such access, for the above
reasons. But how justified is such a stance? Is an Internet-induced
democratic transformation of our societies what is actually happening
on the ground?</p>
<p align="JUSTIFY">I would like to move away, in this blog post, from
the more traditional approaches to the issue of access, where debates
mostly veer towards issues of infrastructure (spectrum, backbones,
last mile connectivity, …) or, under the banner of “diversity”,
towards the needs of specific, disadvantaged communities (especially
linguistic minorities and the disabled). To remind us more sharply of
the issues at stake and of the wide range of human rights that need
our active attention to make our dreams a reality, I would like to
take a step back and to ask two fundamental questions regarding
access: why might access be important? And what do we actually have
access to?</p>
<p align="JUSTIFY">Let me start, then, by exploring the first question:
why, actually, is Internet access important? In his canonical work on
the information age, and especially in the first volume on the rise
of the network society, Manuel Castells (2000) has perhaps provided
the most elaborate and erudite description of the ways in which new
technologies are restructuring our societies and our lives. We are
all all too familiar with the many and deep-seated ways in which the
Internet changes the manner in which we learn, play, court, pay, do
business, maintain relationships, dream, campaign. And yet, the exact
nature of the divide created by the unequal distribution of technical
infrastructure and access, despite being so very real, receives
relatively little attention: this divide is not simply one of
opportunities, it is crucially one of power. If in traditional
Marxist analysis the problem was that the oppressed did not have
access to the means of production, today, one could well argue, the
problem is that they do not have access to the means of communication
and information.</p>
<p align="JUSTIFY">Indeed, the Internet is not something that is simply
happening to us: there are people who are responsible for these new
evolutions. And so it becomes important to ask: who is shaping the
Internet? Who is creating this new world? Let us, by way of example,
consider some figures relating to Internet use in India. So often
hailed as the emerging IT superpower of the world, there are, by the
end of 2009, according to official government figures, in this
country of 1 billion 250 million people slightly more than 15 million
Internet connections. Of these, only slightly more than half, or
almost 8 million, are broadband connections – the rest are still
dial-up ones (TRAI 2010). The number of Internet users is of course
higher – one survey estimates that there are between 52 million and
71 million Internet users in urban areas, where the bulk of users is
still located (IAMAI 2010). But while this is a considerable number,
it remains a fraction of the population in a country so big. What
these figures put in stark relief, then, is that the poor and
marginalised are not so much excluded from the information society
(in fact, many have to bear the consequences of new evolutions made
possible by it in rather excruciating fashion), but rather, that they
are fundamentally excluded from shaping the critical ways in which
our societies are being transformed.</p>
<p align="JUSTIFY">To have at least the possibility to access the
Internet is, then, of central significance in this context for the
possibility of participation it signals in the restructuring of our
societies at the community, national and global level, and this in
two ways: in the creation of visions of where our societies should be
going, and in the actual shaping of the architecture of our societies
in the information age.</p>
<p align="JUSTIFY">If we agree that access attains great significance
in this sense, then a second question poses itself, and that is: in
practice, what exactly are we getting access to? This query should be
of concern to all of us. With the increasing corporatisation of the
Internet and the seemingly growing urges of governments on all
continents to survey and control their citizens, new challenges are
thrown up of how to nurture the growth of open, inclusive, democratic
societies, that all of us are required to take an interest in.</p>
<p align="JUSTIFY">Yet it is in the case of poor and marginalised
people that the challenges are most pronounced. Efforts to
include them in the information society are disproportionately
legitimised on the basis of the contribution these can make to
improving their livelihoods. Initiatives, often using mobile
technology, that allow farmers to get immediate information about the
market prices of the produce they are intending to sell, are perhaps
the most well-known and oft-cited examples in this category. Other
efforts aim to improve the information flow from the government to
citizens: India has set up an ambitious network of Common Service
Centres, for example, that aim to greatly facilitate the access of
citizens to particular government services, such as obtaining birth
or caste certificates – and going by first indications, this also
seems to be succeeding in practice. Only rarely, however, do
initiatives to “include” the poor in the information society
address them as holistic beings who do not only have economic lives,
but political, emotional, creative and intellectual existences as
well. This is not to say that economic issues are not of
importance. But by highlighting only this aspect of poor people's
lives, we promote a highly impoverished understanding of their
existences.</p>
<p align="JUSTIFY">The focus on a limited aspect of the poor's identity
- important as that aspect may be - has a function, however: it makes
it possible to hide from view the extremely restrictive terms on
which poor people are currently being integrated into the information
society. Even initiatives such as the Common Service Centres are in
fact based on a public-private-partnership model that explicitly aims
to “align [..] social and commercial goals” (DIT 2006: 1), and in
effect subordinates government service design to the requirements of
the CSC business model (Singh 2008). The point is not simply that we
need strong privacy and data protection policies in such a context –
although we clearly do. There is a larger issue here, which is that
efforts to include the poor in the information society, in the
present circumstances, really seem to simply integrate them more
closely into a capitalist system over which they have little control,
or to submit them to ever greater levels of government and corporate
surveillance. Their own capacity to give shape to the system in which
they are “included”, despite the oft-heralded capacities of the
Internet to allow greater democratic participation and to turn
everybody into a producer and distributor, as well as a consumer,
remains extremely limited.</p>
<p align="JUSTIFY">Such tendencies have not gone unnoticed. For
example, unlike in many other parts of the world, social movements in
India fighting against dams, special economic zones or mining
operations in forest areas - all initiatives that lead to large-scale
displacement – have not embraced technology as enthusiastically as
one might have expected. There are various reasons for this. Within
Indian nationalism, there have always been strands deeply critical of
technology, with Gandhi perhaps their most illustrious proponent. But
for many activists, technology often also already comes with an
ideological baggage: an application such as Twitter, for example, in
so many of its aspects is clearly manufactured by others, for others,
drawing on value sets that activists often in many ways are reluctant
to embrace. And such connotations only gain greater validity because
of the intimate connections that exist in India between the IT boom
and neoliberalism: technology has great responsibility for many of
the trends and practices these activists are fighting against. While
the Internet might have made possible many new publics, most
movements do not – as movements – recognise these publics as
their own (Kovacs, forthcoming).</p>
<p align="JUSTIFY">To some extent, these are of course questions of the
extent of access that people are granted. But they also raise the
important issue of the value structure of the Internet. Efforts at
inclusion always take for granted a standard that is already set. But
what if the needs and desires of the many billions that still need to
be included are not served by the Internet <em>as it exists</em>? What
if, for it to really work for them, they need to be able to make the
Internet a different place than the one we know today? While it is
obvious that different people will give different answers in
different parts of the world, such debates are complicated
tremendously by the fact that it is no longer sufficient to reach a
national consensus on the issues under discussion, as was the case in
earlier eras. The global nature of the Internet's infrastructure
requires that the possibility of differing opinions, too, needs to be
facilitated at the global level. What are the consequences of this
for the development of democracy?</p>
<p align="JUSTIFY">For access to the Internet to be substantively
meaningful from a human rights perspective in the information age, it
is crucial, then, that at a minimum, the openness of the Internet is
ensured at all levels. Of course, openness can be considered a value
in itself. But perhaps more importantly, at the moment, it is the
only way in which the possibility of a variety of answers to the
pressing question of what shape our societies should take in the
information age can emerge. Open standards and the portability of
data, for example, are crucial if societies are to continue to decide
on the role corporations should play in their public life, rather
than having corporations <em>de facto</em> rule the roost. Similarly,
under no circumstances should anyone be cut off from the Internet, if
people are to participate in the public life of the societies of
which they are members. And these are not just concerns for
developing countries: if recent incidents from France to Australia
are anything to go by, new possibilities facilitated by the Internet
have, at least at the level of governments, formed the impetus for a
clear shift to the right of the political spectrum in many developed
countries. In the developed world, too, the questions of access and
what it allows for are thus issues that should concern all. In the
information age, human rights will only be respected if such respect
is already inscribed in the very architecture of its central
infrastructure itself.<br /><br /></p>
<p align="JUSTIFY"><strong>List of References</strong></p>
<p align="JUSTIFY">Castells, Manuel (2000). <em>The Rise of the Network
Society, 2<sup>nd</sup> edition</em>. Oxford: Blackwell.</p>
<p align="JUSTIFY">Department of Information Technology (DIT) (2006).
<em>Guidelines for the Implementation of Common Services Centers
(CSCs) Scheme in States</em>. New Delhi: Department of Information
Technology, Government of India.</p>
<p align="JUSTIFY">Internet and Mobile Association of India (IAMAI)
(2010). <em>I-Cube 2009-2010: Internet in India</em>. Mumbai: Internet
and Mobile Association of India.</p>
<p align="JUSTIFY">Kovacs, Anja (forthcoming). <em>Inquilab 2.0?
Reflections on Online Activism in India</em> (working title).
Bangalore: Centre for Internet and Society.</p>
<p align="JUSTIFY">Singh, Parminder Jeet (2008). <em>Recommendations for a
Meaningful and Successful e-Governance in India</em>. IT for Change Policy
Brief, IT for Change, Bangalore.</p>
<p align="JUSTIFY">Telecom Regulatory Auhority of India (TRAI) (2010).
<em>The Indian Telecom Services Performance Indicators,
October-December 2009</em>. New Delhi: Telecom Regulatory Auhority of
India.</p>
<p align="JUSTIFY"> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/beyond-access-as-inclusion'>http://editors.cis-india.org/internet-governance/blog/beyond-access-as-inclusion</a>
</p>
No publisheranjaDevelopmentDigital AccessInternet Governancehuman rights2011-08-02T07:29:03ZBlog EntryAn Evidence based Intermediary Liability Policy Framework: Workshop at IGF
http://editors.cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework
<b>CIS is organising a workshop at the Internet Governance Forum 2014. The workshop will be an opportunity to present and discuss ongoing research on the changing definition of intermediaries and their responsibilities across jurisdictions and technologies and contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards.</b>
<p style="text-align: justify; ">The Centre for Internet and Society, India and Centre for Internet and Society, Stanford Law School, USA, will be organising a workshop to analyse the role of intermediary platforms in relation to freedom of expression, freedom of information and freedom of association at the Internet Governance Forum 2014. <span>The aim of the workshop is to highlight the increasing importance of digital rights and broad legal protections of stakeholders in an increasingly knowledge-based economy. The workshop will discuss public policy issues associated with Internet intermediaries, in particular their roles, legal responsibilities and related liability limitations in context of the evolving nature and role of intermediaries in the Internet ecosystem. distinct</span></p>
<p style="text-align: justify; "><b>Online Intermediaries: Setting the context</b></p>
<p style="text-align: justify; ">The Internet has facilitated unprecedented access to information and amplified avenues for expression and engagement by removing the limits of geographic boundaries and enabling diverse sources of information and online communities to coexist. Against the backdrop of a broadening base of users, the role of intermediaries that enable economic, social and political interactions between users in a global networked communication is ubiquitous. Intermediaries are essential to the functioning of the Internet as many producers and consumers of content on the internet rely on the action of some third party–the so called intermediary. Such intermediation ranges from the mere provision of connectivity, to more advanced services such as providing online storage spaces for data, acting as platforms for storage and sharing of user generated content (UGC), or platforms that provides links to other internet content.</p>
<p style="text-align: justify; ">Online intermediaries enhance economic activity by reducing costs, inducing competition by lowering the barriers for participation in the knowledge economy and fuelling innovation through their contribution to the wider ICT sector as well as through their key role in operating and maintaining Internet infrastructure to meet the network capacity demands of new applications and of an expanding base of users.</p>
<p style="text-align: justify; ">Intermediary platforms also provide social benefits, by empowering users and improving choice through social and participative networks, or web services that enable creativity and collaboration amongst individuals. By enabling platforms for self-expression and cooperation, intermediaries also play a critical role in establishing digital trust, protection of human rights such as freedom of speech and expression, privacy and upholding fundamental values such as freedom and democracy.</p>
<p style="text-align: justify; ">However, the economic and social benefits of online intermediaries are conditional to a framework for protection of intermediaries against legal liability for the communication and distribution of content which they enable.</p>
<p style="text-align: justify; "><b>Intermediary Liability</b></p>
<p style="text-align: justify; ">Over the last decade, right holders, service providers and Internet users have been locked in a debate on the potential liability of online intermediaries. The debate has raised global concerns on issues such as, the extent to which Internet intermediaries should be held responsible for content produced by third parties using their Internet infrastructure and how the resultant liability would affect online innovation and the free flow of knowledge in the information economy?</p>
<p style="text-align: justify; ">Given the impact of their services on communications, intermediaries find themselves as either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. Requiring intermediaries to monitor the legality of the online content poses an insurmountable task. Even if monitoring the legality of content by intermediaries against all applicable legislations were possible, the costs of doing so would be prohibitively high. Therefore, placing liability on intermediaries can deter their willingness and ability to provide services, hindering the development of the internet itself.</p>
<p style="text-align: justify; ">Economics of intermediaries are dependent on scale and evaluating the legality of an individual post exceeds the profit from hosting the speech, and in the absence of judicial oversight can lead to a private censorship regime. Intermediaries that are liable for content or face legal exposure, have powerful incentives, to police content and limit user activity to protect themselves. The result is curtailing of legitimate expression especially where obligations related to and definition of illegal content is vague. Content policing mandates impose significant compliance costs limiting the innovation and competiveness of such platforms.</p>
<p style="text-align: justify; ">More importantly, placing liability on intermediaries has a chilling effect on freedom of expression online. Gate keeping obligations by service providers threaten democratic participation and expression of views online, limiting the potential of individuals and restricting freedoms. Imposing liability can also indirectly lead to the death of anonymity and pseudonymity, pervasive surveillance of users' activities, extensive collection of users' data and ultimately would undermine the digital trust between stakeholders.</p>
<p style="text-align: justify; ">Thus effectively, imposing liability for intermediaries creates a chilling effect on Internet activity and speech, create new barriers to innovation and stifles the Internet's potential to promote broader economic and social gains. To avoid these issues, legislators have defined 'safe harbours', limiting the liability of intermediaries under specific circumstances.</p>
<p style="text-align: justify; ">Online intermediaries do not have direct control of what information is or information are exchanged via their platform and might not be aware of illegal content per se. A key framework for online intermediaries, such limited liability regimes provide exceptions for third party intermediaries from liability rules to address this asymmetry of information that exists between content producers and intermediaries.</p>
<p style="text-align: justify; ">However, it is important to note, that significant differences exist concerning the subjects of these limitations, their scope of provisions and procedures and modes of operation. The 'notice and takedown' procedures are at the heart of the safe harbour model and can be subdivided into two approaches:</p>
<p style="text-align: justify; ">a. Vertical approach where liability regime applies to specific types of content exemplified in the US Digital Copyright Millennium Act</p>
<p style="text-align: justify; ">b. Horizontal approach based on the E-Commerce Directive (ECD) where different levels of immunity are granted depending on the type of activity at issue</p>
<p style="text-align: justify; "><b>Current framework </b></p>
<p style="text-align: justify; ">Globally, three broad but distinct models of liability for intermediaries have emerged within the Internet ecosystem:</p>
<p style="text-align: justify; ">1. Strict liability model under which intermediaries are liable for third party content used in countries such as China and Thailand</p>
<p style="text-align: justify; ">2. Safe harbour model granting intermediaries immunity, provided their compliance on certain requirements</p>
<p style="text-align: justify; ">3. Broad immunity model that grants intermediaries broad or conditional immunity from liability for third party content and exempts them from any general requirement to monitor content. <b> </b></p>
<p style="text-align: justify; ">While the models described above can provide useful guidance for the drafting or the improvement of the current legislation, they are limited in their scope and application as they fail to account for the different roles and functions of intermediaries. Legislators and courts are facing increasing difficulties, in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels user generated content and new kinds of and online intermediaries.</p>
<p style="text-align: justify; ">The nature and role of intermediaries change considerably across jurisdictions, and in relation to the social, economic and technical contexts. In addition to the dynamic nature of intermediaries the different categories of Internet intermediaries‘ are frequently not clear-cut, with actors often playing more than one intermediation role. Several of these intermediaries offer a variety of products and services and may have number of roles, and conversely, several of these intermediaries perform the same function. For example , blogs, video services and social media platforms are considered to be 'hosts'. Search engine providers have been treated as 'hosts' and 'technical providers'.</p>
<p style="text-align: justify; ">This limitations of existing models in recognising that different types of intermediaries perform different functions or roles and therefore should have different liability, poses an interesting area for research and global deliberation. Establishing classification of intermediaries, will also help analyse existing patterns of influence in relation to content for example when the removal of content by upstream intermediaries results in undue over-blocking.</p>
<p style="text-align: justify; ">Distinguishing intermediaries on the basis of their roles and functions in the Internet ecosystem is critical to ensuring a balanced system of liability and addressing concerns for freedom of expression. Rather than the highly abstracted view of intermediaries as providing a single unified service of connecting third parties, the definition of intermediaries must expand to include the specific role and function they have in relation to users' rights. A successful intermediary liability regime must balance the needs of producers, consumers, affected parties and law enforcement, address the risk of abuses for political or commercial purposes, safeguard human rights and contribute to the evolution of uniform principles and safeguards.</p>
<p style="text-align: justify; "><b>Towards an evidence based intermediary liability policy framework</b></p>
<p style="text-align: justify; ">This workshop aims to bring together leading representatives from a broad spectrum of stakeholder groups to discuss liability related issues and ways to enhance Internet users’ trust.</p>
<p style="text-align: justify; ">Questions to address at the panel include:</p>
<p style="text-align: justify; ">1. What are the varying definitions of intermediaries across jurisdictions?</p>
<p style="text-align: justify; ">2. What are the specific roles and functions that allow for classification of intermediaries?</p>
<p style="text-align: justify; ">3. How can we ensure the legal framework keeps pace with technological advances and the changing roles of intermediaries?</p>
<p style="text-align: justify; ">4. What are the gaps in existing models in balancing innovation, economic growth and human rights?</p>
<p style="text-align: justify; ">5. What could be the respective role of law and industry self-regulation in enhancing trust?</p>
<p style="text-align: justify; ">6. How can we enhance multi-stakeholder cooperation in this space?</p>
<p style="text-align: justify; ">Confirmed Panel:</p>
<p style="text-align: justify; ">Technical Community: Malcolm Hutty: Internet Service Providers Association (ISPA)<br />Civil Society: Gabrielle Guillemin: Article19<br />Academic: Nicolo Zingales: Assistant Professor of Law at Tilburg University<br />Intergovernmental: Rebecca Mackinnon: Consent of the Networked, UNESCO project<br />Civil Society: Anriette Esterhuysen: Association for Progressive Communication (APC)<br />Civil Society: Francisco Vera: Advocacy Director: Derechos Digitale<br />Private Sector: Titi Akinsanmi: Policy and Government Relations Manager, Google Sub-Saharan Africa<br />Legal: Martin Husovec: MaxPlanck Institute</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><span>Moderator(s): </span><span>Giancarlo Frosio, Centre for Internet and Society (CIS) and </span><span>Jeremy Malcolm, Electronic Frontier Foundation </span></p>
<p style="text-align: justify; "><span><span>Remote Moderator: </span><span>Anubha Sinha, New Delhi</span></span></p>
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For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework'>http://editors.cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework</a>
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No publisherjyotihuman rightsDigital Governanceinternet governanceFreedom of Speech and ExpressionInternet Governance ForumHuman Rights OnlineIntermediary LiabilityPoliciesMulti-stakeholder2014-07-04T06:41:10ZBlog Entry