Liabilities of internet intermediaries

First published by the Philippine Daily Inquirer / 05:06 AM March 25, 2018

During the last hearing conducted by the Senate committee on public information chaired by Sen. Grace Poe, the liability for fake news of internet intermediaries was taken up.

Active and passive. The discussion reminded me of the treatise of Tess Marie P. Tan, which was adjudged second place (and won P200,000 and a plaque of recognition) in the recent “Dissertation Writing Contest” sponsored by the Foundation for Liberty and Prosperity (FLP) with funding from Ayala Corp. and the cooperation of the Philippine Association of Law Schools.

Relevantly, Tan asked: Are active internet intermediaries (which have editorial control over their content, like online news outlets — think Inquirer.net) liable for libel and damages for what are published on their sites? More crucially, are they equally liable for uploaded comments and photos of their readers?

What about the passive internet intermediaries (which do not exercise editorial control over their published content, like YouTube, Facebook, Twitter, Instagram, Google and Yahoo!)? Are they criminally and civilly liable for what their customers or users upload on their sites?

Specifically, if a user publishes content that infringes on a third person’s intellectual property, should a passive intermediary like Yahoo! be held accountable? If an advertiser buys ad space, may it determine the fitness of the ad? Otherwise stated, may an intermediary privatize censorship?

Tan began with an ode: “Liberty takes on different shades. It is a universal concept with varying peculiar incarnations. To an innocent man accused of wrongdoing, it is exercising his right to be heard; while to the wrongdoer feigning innocence, it is enjoying his right to silence.”

Then, for expanding the frontiers of liberty to heretofore unimaginable height and breadth, she exalted the internet: “Cyberspace is today’s playground. It is where we get our information, ramble about the trivialities of daily life, speak out against oppressive rulers, make friends, even find love … with the mere press of a button. At no other point in time has society been able to exercise its freedom of expression with such ease.”

Finally, she gracefully pirouetted to the subject matter of FLP’s dissertation contest: “In this digital day and age, when liberty and prosperity are so uniquely intertwined in the internet, how does the rule of law safeguard both?” Touché!

To answer the questions she raised, Tan used the “Black Letter Approach.” Consistent with the borderless world of cyberspace, she explored beyond Philippine laws and jurisprudence and went far and wide to multinational treaties and documents, mainly the  United Nations’ Guiding Principles on Business and Human Rights, the Covenant on Civil and Political Rights, the Covenant on Social, Economic and Cultural Rights and the Universal Declaration on Human Rights.

She also extensively analyzed international jurisprudence (like decisions and opinions of the International Court of Justice and the highest courts of the United States, European Union, France, Hungary, Estonia, etc.) as well as the published works of internationally recognized publicists and professors.

After extensive search and research, she found that, by and large, in the United States and Europe, intermediaries were held liable only if they exercised “editorial control” over the contents of their websites. In contrast, more restrictive states like China and Thailand penalize intermediaries for the illegal content on their sites, thereby triggering a “repressive effect” on free speech.

As an alternative to the “control test,” Tan posits the “economic interest test” used by the European Court of Human Rights which determined liability on whether the intermediary had a commercial interest in the uploading of the content or in the posting of the comment.

To sum up, Tan believes passive “intermediaries should not be made to assess the lawfulness of content, for that is a judicial question best resolved by a court … [They] should remain neutral platforms … Only upon refusal to comply with a valid order of the courts should they be found liable.”

To enjoy the full flavor of her piece, please visit www.libpros.com.