University Analysis: Internet Intermediary Liability in Defamation Law

This report provides a comprehensive summary of the legal issues surrounding internet intermediary liability in defamation cases. It examines various models used to determine liability, including strict liability, broad immunity, safe harbour, generalist, and notice-and-notice approaches. The report discusses the application of these models in different jurisdictions, such as the United Kingdom and the United States, analyzing relevant legislation like the E-Commerce Regulations, the Communications Decency Act, and the Digital Millennium Copyright Act. It highlights the balance between protecting freedom of expression and addressing the spread of defamatory content, referencing international human rights frameworks. The report also delves into specific case studies, such as AY v Facebook and Karim v Newsquest Media Group Ltd, to illustrate how these legal principles are applied in practice. The analysis covers the roles and responsibilities of internet intermediaries, the concept of 'knowledge' in determining liability, and the challenges of content monitoring and removal. The report concludes by emphasizing the ongoing efforts to address this complex issue and the limitations of existing protections.

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Internet intermediaries in modern era can be liable for content posted by third party.
There are five models to identify and resolve the issue of imposing liability on the internet
intermediaries. The models are: strict liability, broad immunity, safe harbour, generalist and
notice-and-notice. These models require the intermediaries to monitor the publishing
contents, to forward an electronic notice for infringement of copyright to a linked user and
immunes them from liability under certain conditions. The risks and liability of the internet
intermediaries are not given any special consideration of law, rather they are treated under the
civil and criminal laws under the generalist model.
Imposing liabilities on internet intermediaries includes their power to scrutinize and
monitor the objectionable contents. They need to ensure compliance with the international
human rights aspect. The international human rights framework protects the user right to
express their views online, reputation should not be infringed in any context. The freedom of
expression of the users is guaranteed under Article 19 of the Universal Declaration of Human
Rights 1948 and International Covenant on Civil and Political Rights 1966. The Human
Rights Council, 2011 included internet-communications in the freedom of expression. It also
stated that restriction should be imposed on specified contents rather than on a general basis.
Defamation law should drafted in compliance with the freedom of expression.
The United Kingdom used the wider context of safe harbour models for internet
intermediaries’ liabilities. UK has implemented this model in the E-Commerce Regulations.
Article 12-15 of the Regulation provides a safe harbour to the information society services,
which acts as a host of content. Article 12 is defence to conduits which did not initiate the
transmission of the information. The websites which are reported to have infringed the
intellectual property law, are blocked with the help of injunction in United Kingdom. Article
13 requires a caching intermediary to remove a content if at the time of caching the contents
he obtains a knowledge or order from the Court to take down the content. Article 14 provides

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a clear explanation of liability for hosts, as they are mostly held liable for any unlawful third
party contents. Article 14 disabled the immunity of a host if he was aware that certain illegal
consequences may arise from a content. It has explained that host of contents like Facebook,
Twitters are the platforms to post and not create content. Article 15 relieves an intermediary
from an obligation to monitor information provided in their services in certain cases. In
Karim v Newsquest Media Group Ltd, the protection was received by the host even though
they had the capability to moderate the comments which were posted. The European
Commission explained that an intermediary obtains an actual knowledge from a court order
or a notice.
The term host does not simply refer to storing third party content. Hosts of contents
sometimes refers to the platform used by third party for interactions. It makes the contents
available and accessible to the users. Knowledge in this aspect refers to the knowledge about
any apparent illegal activities. In UK the aspect of knowledge is not limited to what is
mentioned in Regulation 19 of the E Commerce Regulations, rather it is extended to the
meaning provided in the Defamation Act. Liability can be imposed on any unlawfulness and
not only for defamatory statement. Knowledge, automatically relates to issue of notice, for
which there can be no uniform regulation. It refers to notify the intermediaries to fix any
unlawful content. There is an issue in deciding the speed to remove the content from the
internet. The Pritchard v Van Nes (2016) the Court ordered the objectionable object to be
removed immediately.
In R (British Telecommunication plc) v Secretory of State, Article 15 was applied,
that explained and removed the obligation of monitoring from the intermediaries. The Court
determined that British Telecommunication had no obligation to monitor, and the role was
for the copyright holder. However, the issue to defer the content monitoring and blocking the
content is subject to consideration. The AY v Facebook (Ireland) Ltd & Ors (2016) was a

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case based on similar context. Facebook removed a pornographic photo of a 14 year old, but
the photo was reposted on Facebook soon. A suit had been filed against Facebook by the girl
for failure to prevent misuse of information and causing a breach of data protection.
In United States of America, the broad immunity model was recognised under the
Communications Decency Act for most of the objectionable online contents. Section 230 of
the Communications Decency Act has provided an immunity to intermediaries, and at 2010,
17.2% of the claims under Section 230 were for alleged defamatory content and out of which
almost 2/3 of allegation was dismissed.
Section 230 of Communications Decency Act has given the intermediaries a
conditional immunity from liability. The main objective of it was to monitor pornographic
content. The endeavours was to promote corporate social responsibility of the intermediaries
on the other hand providing immunity to them.
Section 230 has categorised the intermediaries into three namely, online hosts,
communications conduits and search engines. It has included publishers, conduits and
distributors and imposed liabilities on them. However, it can provide a greater protection to
the intermediaries from a third party content. The protection extends to an intermediary who
has refused to remove a content even after being asked by an author of that content to be
taken down.
However, this is not an ultimate protection, but is subject to limitation. A plaintiff
may not be able to make a claim if the defendant is merely the user or provider of interactive
computer service, or the objectionable content is provided by another information content
provider. The difference between an intermediary and an interactive service provider is
subjected to be considered in different cases. While deciding the case of Housing Council of

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San Fernando Valley v Roomates.com LLC (2007), the Court established that if a website is
used to develop illegal content, it shall not get the benefit from Section 230.
There has been some proposal made to amend Section 230 of Communications
Decency Act. There is a need to amend the section to reflect the decision of the Roommates
case to remove the immunities of the intermediaries who had encouraged to post unlawful
contents. This section should also be made unavailable to those who has sufficient knowledge
about a defamatory content.
Digital Millennium Copyright Act has provided a safe harbour to the service
providers. Section 512 (i) of the Act has made a condition for the service providers to receive
the protection to have a policy for terminating services of the repeated copyright infringers. It
provides a safe harbour to a service provider who did not have actual knowledge about the
infringing content under Section 512 (c)(1)(B).
From overall discussion it can be concluded that United States has made the needed
endeavours to address the issue to determine the liabilities of internet intermediaries in
defamatory content published by third parties. The Communications Decency Act and the
Digital Millennium Copyright Act has positively recognised the problem and provided
protection to them. However, the protection given to the intermediaries are not unilateral in
US but are subject to limitation.

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References:
AY v Facebook (Ireland) Ltd & Ors (2016)
Communications Decency Act
Digital Millennium Copyright Act
E-Commerce Regulations
Housing Council of San Fernando Valley v Roomates.com LLC (2007)
International Covenant on Civil and Political Rights 1966
Karim v Newsquest Media Group Ltd [2009] EWHC 3205 (QB)
Pritchard v Van Nes (2016)
R (British Telecommunication plc) v Secretory of State
Universal Declaration of Human Rights 1948