Content and Carrier: The Question of Liability |
DOWNLOAD CONTENTS SUMMARY RECOMMENDATIONS ORDER THIS REPORT Encryption and Human Rights HRW HOME Bahrain Iraq Jordan Morocco Saudi Arabia Syria Tunisia United Arab Emirates | The development of the Internet has spurred the promulgation of new laws, as well as the often-hasty application to the Internet of existing media laws. One controversy that has flared in several countries is over apportioning liability for objectionable content that appears online.(60) Is an Internet Service Provider that hosts a web site or "chat room" responsible for its content, or is the originator of the offending content (for example, the author) solely responsible? And should a cybercafé be responsible for messages sent by clients from its premises? As noted above, the right to free expression is best served by laws that focus liability on the originator of the offending content, rather than on its conduit. But at least one country in the region, Tunisia, has promulgated laws holding ISPs liable for content, including statutes requiring the ISP director to "maintain constant oversight of the content of the ISP's servers to insure that no information remains on the system that is contrary to public order and good morals." The European Commission, in a 1996 report, stated, "Internet access providers and host service providers play a key role in giving users access to Internet content. It should not however be forgotten that the prime responsibility for content lies with authors and content providers." ISPs "should not be targeted by the individual governments and law enforcement bodies where the ISPs have no control of the Internet content."(61) This approach was endorsed by the European Parliament on May 13, 1998 and by the Council of the European Union in a "recommendation" formally adopted on September 24, 1998.(62) In the U.S., the Communications Decency Act of 1996 clearly distinguishes, for the purpose of assigning liability, the content provider from those who transmit the content. The CDA's section 230(c)(1), amending the Communications Act of 1934, states, "[No] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Several European countries have adopted or proposed legislation limiting the liability of access providers for content provided by third parties.(63) Cybercafés are shops where persons can walk in off the street and use Internet-connected computers for a fee. Among their patrons are persons who have no other means of accessing the Internet, as well as persons who seek a measure of anonymity or privacy they feel they do not have when using their own computers. The fluid nature of the clientele of cybercafés has aroused concerns among some governments. In Vietnam, security officials shut down a cybercafé after expressing objections to e-mails that were allegedly sent from it.(64) In Singapore, which has legislation regulating content on the Internet and imposing oversight responsibility on ISPs, an anonymous comment in February 1996 sent from a cybercafé to the <soc.culture.singapore> newsgroup immediately resulted in an apology from the cafe's owners and a disassociation from the content of the posting. Apparently fearing government pressures, several Singaporean cybercafés then reportedly reconfigured their equipment so that patrons could browse but no longer post material in newsgroups.(65) In Tunisia, at least some Internet cafés pursue practices that limit user privacy and anonymity, according to a European journalist who visited two locations in greater Tunis in February 1999. The terminals in both shops were arranged so that all of the monitor screens were visible from a single point in the room. In one location, clients were required to present identity documents to the staff; in the other they were required to provide their names and addresses. 60. See <www.gilc.org/speech/liability> for information about ISP liability jurisprudence in several Western countries. 61. <www2.echo.lu/legal/en/Internet/communic.html>. 62. "Council Recommendation of 24 September 1998 on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity," <http://europa.eu.int/comm/dg10/avpolicy/ new_srv/recom-intro_en.html>. For more on European Union policy toward the Internet, see Penny Campbell and Emmanuelle Machet, "European Policy on Regulation of Content on the Internet," in the National Council for Civil Liberties, ed., Liberating Cyberspace: Civil Liberties, Human Rights and the Internet (London: Pluto Press, 1999), pp. 140-158. 63. For example, Germany's Information and Communications Services Act, article 1 section 5, states, "[Internet Service] Providers shall not be responsible for any third-party content which they make available for use unless they have knowledge of such content and are technically able and can reasonably be expected to block the use of such content." But this legislation does not fully allay free-speech concerns about the burden placed on the ISP. 64. David Case, "Big Brother Is Alive and Well in Vietnam--And He Really Hates the Web," Wired, vol. 5, no.11 (November 1997) . 65. Gary Rodan, "The Internet and Political Control in Singapore," Political Science Quarterly, vol. 113, no. 1, Spring 1998, pp. 63-90, <http://epn.org/psq/rodan.html> or <http://tap.epn.org/psq/rodan.html>.
© June 1999 Human Rights Watch