Don’t shoot the messenger, intermediary liability principles under threat

Part 1 - Lead Organizer

 

Contact Person

MICHAEL CASTER

Organization / Affiliation (Please state "Individual" if appropriate)

ARTICLE 19

Designation

Asia Digital Program Manager

Gender

Male

Economy of Residence

Thailand

Primary Stakeholder Group

Civil Society

 

Part 2 - Session Proposal

Your proposal is for

Main Conference (Day 1-3)

Session Title

Don’t shoot the messenger, intermediary liability principles under threat

Track(s) (can select more than one)

Trust

Session Format

Panel Discussion

Where do you plan to organize your session?

Virtual / online

Specific Issues for Discussion

Intermediary liability principles are important for protecting innovation and internet freedom. The UN Special Rapporteur on the Freedom of Expression notes that heavy fines and imprisonment on Internet intermediaries can have a ‘significant chilling effect on freedom of expression.’ The Manila Principles on Intermediary Liability outlines that intermediaries should be immune from liability for third-party content and should never be required to proactively monitor content. However, across the region we have witnessed a growing assault on such principles. In February 2021, India announced new regulations under the Information Technology Act targeting internet intermediaries. The Information Technology Act already carries a punishment of fines and a prison term up to seven years if intermediaries fail to comply. Malaysia, in February, convicted online news outlet Malaysiakini of contempt of court and imposed an excessive fine over third-party comment. In March, Malaysia passed an Emergency Ordinance which further fails to distinguish between content producers and intermediaries in introducing strict takedown notices and punishments for failure to remove. Indonesia has also enacted regulations targeting intermediaries in violation of these principles. The panel will introduce international intermediary liability principles and explore the challenges of their implementation in Asia Pacific, ending with concrete recommendations.

Describe the Relevance of Your Session to APrIGF

The panel addresses all APrIGF thematic tracks of inclusion, sustainability, and trust. The denial of such protections, as UN human rights experts and others have noted, risks limiting diversity and equitable access, as certain platforms may be punished for the opposing or marginalized voices they host. Intermediaries that can be held accountable for what third-parties post will be less hospitable as hosts for innovation. And governments that impose harsh laws in violation of intermediary liability principles violate digital and human rights, and impose content moderation requirements that increase the risks of self-censorship. The panel addresses these interconnected challenges and highlights recommendations for how such principles should be protected to ensure inclusion, sustainability, and trust online. A lot of the discussion on intermediary liability has come from the United States Section 230 of the Communications Decency Act, but there has been less discussion in Asia Pacific. Indeed, human rights and freedom of expression lawyers representing those targeted in violation of such principles often don’t even raise them in their defense, for lack of awareness. This was the case with Malaysiakini for example. Expanding awareness in Asia Pacific will directly relate to APrIGF’s goals of promoting internet governance grounded in international norms.

Methodology / Agenda

The moderator will briefly introduce the topic and introduce the speakers. The moderator will first outline international intermediary liability principles, drawing in particular on ARTICLE 19’s work on the issue, and move into a conversation with the panelists. The panel of 4 experts will engage with the moderator to discuss different challenges to intermediary liability principles in Asia Pacific, through emblematic case studies. After covering key international principles and challenges in the region, the moderator will shift to explore recommendations and best practices with the panelists, while also encouraging interactive Q&A from the participants throughout the full session.

Please provide 3 subject matter tags that best describe your session.

# IntermediaryLiability, #ContentModeration, #InternetFreedom

 

Moderators & Speakers Info (Please complete where possible)

Name Organization Designation Economy of Residence Stakeholder Group Gender Status of Confirmation
Moderator (Primary) Michael Caster ARTICLE 19 Asia Digital Program Manager Thailand Civil Society Male Confirmed
Moderator (Back-up) Jenny Domino International Commission of Jurists Associate Legal Advisor Philippines Civil Society Female Confirmed
Speaker 1 Premesh Chandran Malaysiakini CEO and co-founder Malaysia Press \/ Media Male Confirmed
Speaker 2 Damar Juniarto SafeNet Executive Director Indonesia Civil Society Male Confirmed
Speaker 3 Kyungsin Park Korea University Law School, Open Net Association Professor of Law, Executive Director South Korea Academia Male Confirmed
Speaker 4 Vrinda Bhandari Internet Freedom Foundation Of-Counsel India Civil Society Female Confirmed

 

Please explain the rationale for choosing each of the above contributors to the session.

The panelists have been selected as leading experts, practitioners, and those with direct experience relating to the challenges and best principles on intermediary liability. Chosen from among media, academia, and civil society, the rationale of this group is to ensure both a broad geographic and sector-specific diversity but also to profile key case studies from the region. The Premesh Chandran, as CEO of Malaysiakini brings to the discussion the direct perspective of someone from a media house that has been targeted by judicial harassment over third party comments in violation of intermediary liability principles. He will be able to discuss the process whereby the Malaysian authorities have violated these principles to hold a content host liable for comments made on their platform and what this means for other media likewise targeted. His perspective brings a needed first person component. Vrinda Bhandari is a leading legal expert on internet and communications technology law in India, where platforms have increasingly been targeted by repressive laws and policies in violation of core intermediary liability principles. She will be able to both speak to specific cases such as the revent removal of Twitter’s safe harbor status and to larger concerns around the shifting regulatory environment in India pertaining to these challenges. Damar Juniarto, Executive Director of SafeNet, a leader in digital rights in Indonesia and Southeast Asia, will add from his expertise and his organization’s work on recent regulatory changes, especially concerning Ministerial Regulation 5, which seeks to strip intermediaries of their liability as part of a raft of other concerning laws and policies on internet governance in Indonesia. And finally, Kyungsin Park is the Executive Director of Open Net Association and a professor of law at Korea University Law School, along with being an academic member of the Global Network Initiative, brings a font of both academic, legal, and practitioners’ expertise to the conversation, both from the East Asia perspective of Korean regulations and as a member of the regional and global narrative on developing and implementing best practices on intermediary liability toward the promotion and protection of internet freedom.