Finding the benefits of online self-regulation based on the Intermediary Responsibility Principles

09.01.2018

With the rapid development of the Internet, the increasing integration of its technologies in traditional sectors of the economy, contributing to the generation of new and convergent relationships, as well as the dynamic growth of the number of users and unprecedented opportunities for creating and distributing content, the question of legal regulation of the Internet, or rather relationships in this environment, inevitably arises. However, given the lack of a single definition of the Internet, as well as the complexity of the specific nature of the Internet itself, a number of challenges are being created to find a harmonious approach to regulating the Internet at the global and national levels.

A number of calls at the national level comes primarily from the decentralized infrastructure of the Internet, where each user or subject of legal relations gets the opportunity to be engaged in an interactive, multimedia and self-regulatory environment. Along with the rules and procedures recommended by the RFC, as well as the basis of any legal relationship, morality and ethics, also known as netiket or “netiquette”, are at the heart of the self-regulation of Internet relations.

The availability of the Internet in the country is growing, as evidenced by the following data:

  • increase in the capacity of the country’s international Internet channel from 5 to 30 Gbps over the past 4 years (according to the Central Asia Regional Connectivity Pre-Feasibility Assessment, Terabit Consulting);
  • the growth of the broadband mobile network coverage (3G, 4G) and, accordingly, the spread of smartphones as an access device among more than 2 million users.

Self-regulation in the context of the growing coverage of network access is becoming an important success factor in government regulation of Internet relations and the use of ICT capabilities in solving local problems with the active participation of network users in general and citizens of the country in particular. For example, two of the seven equivalent goals of the Taza Komom digital transformation program of the country (see the Taza Komi Digital Transformation Program of the Kyrgyz Republic) are:

  • Helping every Kyrgyz citizen to become a digital citizen with the necessary knowledge and capabilities (citizen involvement in managing the country through digital technologies);
  • Transformation of Kyrgyzstan into a safe place to live and work on-line (security of technology, data and networks).

It is a digital citizen who can be a reliable partner of the state in the sustainable development of the information society.

On the other hand, the practice of self-regulation online, raising the level of awareness of network users, also provides a favorable environment for the implementation of international and national legal norms and obligations not only for the realization of human rights in accessing information and expressing opinions “regardless of state borders” and forms of expression of their choice, but also to enhance accountability for the conscious fulfillment of special duties and special responsibilities (Article 19, ICCPR – International Covenant on Civil and Political Rights, to which the implementation of the Kyrgyz Republic joined in 1994). The importance of such a balance of criteria of proportionality and necessity is also emphasized by a number of national regulatory legal acts, in particular, documents aimed at confronting extremism and aimed at “increasing the level of security of individuals, society and the state, providing a favorable environment conducive to reducing the risks of radicalization of citizens” ( Republic on countering extremism and terrorism for 2017-2022. Approved by the Decree of the Government of the Kyrgyz Republic of June 21, 2017, №394).

However, the criteria of proportionality and necessity are not always respected at the level of implementation of the NLA and the policy of decisions, when security issues dominate the rights and interests of the individual, society and even the state. This practice has a negative impact on the legal regulation of relations with the Internet, replacing them with technical issues of regulating network infrastructure.

The approach to regulating the Internet used by many countries can halt and in some cases even freeze the socio-economic development of society through ICT, as well as violate the rights and freedoms of users and contribute to the growth of digital inequality. For example, bringing the Internet provider or other content holder to responsibility, the regulator not only fails to achieve its goal, that is, ensuring “security of the individual, society and the state”, but rather weakens national content, not to mention the competitiveness of domestic ICT market players. On the other hand, blocking a whole Internet resource instead of deleting a specific material (resource page) temporarily hampers user access within the country, leaving it open for access outside the country, and also increasing interest in such a resource. Only a technical approach to the implementation of court decisions is not always the most effective. An example would be blocking of the Internet resource www.archive.org (see http://web.archive.org/web/20131203213233/ – this resource is blocked by the Decision of the Oktyabrsky District Court of Bishkek Information is available at http://megaline.kg/klientam/zablokirovannyie-resursyi/), when access to the entire resource, useful to many users, authorized bodies, researchers and other parties, is restricted for the sake of one small material located on this platform. Or another example, clearly showing the counterproductiveness of a technical approach to block illegal content, is restricting access to a number of blogs (illegal) that are hosted on the www.wordpress.com platform, which blocks access to the entire resource.

There is also a need to establish basic principles of state role in the online environment. Among them, the principle of freedom of speech, expression and access to information, as well as the principle of network neutrality and the so-called “sharpest blade” principle, which means “… any technical decision made by a ministry or other authority to block any resource should be as accurate as possible. “

Thus, to improve the efficiency of regulation, it is necessary to take an integrated approach, the elements of which are:

  • legal relations as a subject of regulation;
  • technical solution of the issue together with the owner and content provider;
  • the direct participation of all stakeholders in balancing the criteria of proportionality and necessity;
  • self-regulation of online legal relations.

Another argument in favor of a multilateral approach to regulating legal relations is the nature and role of the Internet itself in the life of society and the state. First, the Internet is a public medium. Secondly, the Internet is not only an environment for accessing and generating information, but also integrating into all traditional sectors of society, which contributes to the generation of new industries, converting them into a global cyber-physical system open to the creation and expansion of the country’s economic niche.

Self-regulation as a way to strengthen legal relations in the network, taking into account maintaining a balance of interests of the individual, society and the state.

Industry self-regulation is widely practiced in the world and acquires a central role in the collective approach to the network security of society, in particular children. It can take many forms, including ethical codes, hotlines, filters, and classification systems.

The state is still given a significant place in any attempts at self-regulation. According to the recommendations of the Kids Online survey conducted in the EU, if, while ensuring network security, we rely on self-regulation, then the state should provide strong control in order for the regulation to be “universal, effective and responsible”. In addition, the state, not limited to the direction of industry self-regulation, should promote network security by educating, encouraging, financing and stimulating social services for working with children and young people.

Self-regulation, as a position, has a number of advantages not only for users, but also for content holders. First of all, the possibility of self-determination of content for site owners. In terms of self-regulation, the site owner must indicate in the basic parameters of the proposed programs: what audience they are designed to warn a certain category of users as well as about the dangers of this or that type of content. Such self-regulation imposes certain requirements on those engaged in Internet content.

The Manila principles of mediators are one of the multilateral approaches to strengthen the practice of self-regulation. This mechanism is based on the fact that any legal relationship, for example, data exchange on the Internet, is done through the interaction of the user, the Internet provider and the content holder. Initially, the main principle of building online relationships was to ensure a balance between the freedom of speech of users and security.

The Manila Principles are pillars of recommendations developed by civil society institutions, based on international human rights instruments and other international standards. Compliance with these norms will create a favorable environment for innovation, in which the interests of the state and other stakeholders, including service and content providers, as well as users, as potential content producers, are balanced. The principles themselves and their norms are presented in the matrix developed by the authors (see Table I.

I. Intermediaries should be exempted from liability for third party information.

It is based on the understanding that all rules governing the responsibility of intermediaries (Internet provider or content provider) “must be established by clear, solid and accessible laws” and that the intermediary cannot be held responsible for the information or content of a site, if it did not participate in the creation and / or editing of this information. Also, the mediator “should not be held responsible for the non-acceptance of measures to restrict legal information” (Principle I clause (c)). An example of a restriction of legal information may be a restriction on access to the right to oblivion. The norms of the principle also protect the intermediary as content hosting, in particular, “the intermediary should not be directly responsible for hosting illegal information of third parties” (Principle I, paragraph (d)). Considering the broad technical capabilities of the hosting provider for the regulation of hosting content, this paragraph also states that “the rules of the intermediary’s liability should not require it to conduct preventive checks on third-party information” (I.d). Thus, this provision can be interpreted as limiting the powers of the hosting provider or as a guarantee that the hosting content is protected from interference by an intermediary and / or regulator. Information of third parties in this case is all information posted by users on social networks and on various sites, including sites hosted by an intermediary.

An important criterion for compliance with this principle is the existence of rules regulating the responsibility of the mediator, which “must be established by clear, clear and accessible laws” (Principle I, paragraph (a)).

The principles also impose certain obligations on the mediator and the government, which are disclosed in the discussion of Principle V. They are presented in the matrix as obligations of the parties.

The relevance of this principle lies in the fact that often the state exerts pressure on Internet providers, and in some cases the latter are held accountable for the content of a website (often this problem arises due to publications in Internet media of pornographic and / or other illegal content). However, as is known, the Internet provider is the Internet provider for the user, but not the holder of all Internet content, and cannot influence the content, even having technical capabilities, as it is limited by legal norms.

II. It is impossible to demand restriction of access to information without a decision of the judicial authority.

Restricting the right of access to information is one of the most sensitive moments in a court decision on restricting access. Since justice, according to the Constitution of the Kyrgyz Republic, is carried out only by the court, and a court decision is only within the jurisdiction of the court, therefore, it is impossible to demand execution of the decision in the absence of a decisive rule.

Restricting access to information in its some sense is a violation of the basic principle of the human right to access information. However, access is restricted if the court finds the content illegal (extremist / terrorist and / or other destructive content) containing a danger to the user and society. Such a restriction should occur only by a court decision (in the Kyrgyz Republic, proceedings on such an issue are carried out in accordance with Chapter 25-2 of the Code of Civil Procedure of the Kyrgyz Republic).

Principle II (clause (b)) defines the following 4 criteria for such a decision, namely:

  • Recognize information as illegal in this jurisdiction.
  • Include a description of illegal information, as well as identifying information on which this information can be found on the Internet.
  • Contain evidence sufficient to substantiate such a decision (if applicable)
  • Determine the time period for which information should be limited.

Paragraph (d) of the same principle determines the importance of compliance of the decision with the established format, freeing the intermediary from liability “for non-execution of a decision that does not meet the criteria” presented in paragraph (b). Paragraph (a) specifies the obligations of the contractor (government) not to require the intermediary to restrict content “without the decision of an independent and impartial judicial body that recognized this information to be illegal”. Looking ahead, it is important to emphasize that other principles also contribute to the legal relationship of this principle, imposing certain obligations on the mediator, the government and the judiciary (see Table 1, component “Restrictions on access to information”). For example, Principle IV imposes certain obligations on the judiciary, such as minimal use of “technical measures”, definitions of a “time frame” for a decision and regular review of restriction decisions (Principle IV, (b)).

However, the prosecution of a service provider (Internet provider) is legal only in case of a deliberate non-execution of a court decision to restrict access, as well as the deliberate distribution of content deemed extremist by the court, as well as influence on the content or other illegal actions.

III. The request to restrict access to information should be clear, unambiguous and carried out in accordance with the Law

An application for access restriction must be prepared in accordance with the certain procedures and meet criteria such as clarity and unambiguity. Further, the norms of the principle reveal the details of these criteria (see Table 1, “Request to restrict access to information”). For example, the request must contain grounds for restricting access to the specified information, evidence of its belonging to an illegal one, as well as its description and address or other pointers for finding it in the Internet space (URL or other pointers) (Principle III. (B ), (c)).

A request to restrict access sent to an intermediary (Internet service provider) must contain a copy of the court decision, which must clearly state the grounds for restricting access, the necessary standards according to which the court decision was made, as well as indicators of this information, including opportunities for appeal or counterclaim. A copy of this judgment should be sent to the content holder to explain the reasons. To increase the transparency of the parties involved in the content restriction process, for the government, the document defines “publication of transparency reports with specific data on all orders and requests sent to intermediaries” (Principle VI. (D)), and for the judicial authority – unambiguous request ( Principle IV. (A)) and the refusal to force the intermediary to identify the user “(Principle III. (D)).

An analysis of domestic practices for restricting access to information under Principle III shows the following:

  • there is no reason to restrict access to specific content in the information held by content holders;
  • most court decisions are closed to the public;
  • decisions on traditional information carriers recognized as prohibited on the territory of the Kyrgyz Republic are available on the Internet (see the Registry of Limited Offline Materials located on the website of the Ministry of Justice of the Kyrgyz Republic – http://minjust.gov.kg/ru/content/468). However, such a register of online resources is not available on the websites of authorized bodies.

IV. Laws and rules for restricting access, the practice of their implementation must meet the criteria of necessity and proportionality.

 

Necessity and proportionality are basic criteria for the legislation of a democratic society. These criteria are important factors for the successful implementation of the capabilities of the Internet, both to strengthen democratic principles in the country and to increase the competitiveness of the domestic economy at the global level. Each intermediary, domestic or foreign, can contribute to the accessibility of not only products (information, software, virtual), but also services for both importing into the country and exporting from it. Following these criteria reduces the number of unreasonable counterproductive decisions aimed at protecting departmental interests to the detriment of national ones. For example, the restriction of access to the global web archive (The court decision on access restriction was not published on the official website, however, it is included in the register of materials that are limited in access on the territory of the Kyrgyz Republic on the Internet).

As noted above, this case is a precedent for violation of the criteria of necessity and proportionality, when the whole archive.org online resource is blocked due to several resources. This approach not only disables the entire country’s access to the useful data of this resource, but also temporarily disables the archiving of domestic content or destroys the country’s online footprint in this important online public memory that is important for present and future generations. This negative practice has already been adopted in relation to another resource wordpress.com, where many useful blogs are hosted. The principles emphasize that “any responsibility of the intermediary should be directly related to his unlawful actions to fail to comply with the decision to restrict information and be proportional to these actions (II.c)” and that “the request for restriction must concern certain information (IV.a)”.

To these criteria (Principle IV) are added such criteria as due procedures (Principle V), transparency and accountability (Principle VI), the right to appeal the decision (Principle V). Again, for each information there should be a specific request, and for restricting information, minimum restrictive technical measures should be used (Principle IV. (B)). If the content is limited in a particular state, and the communication provider operates not only in that state, but also in the whole region, then the communication provider must restrict access to the required content only in the state where this measure is required by the court (Principle IV. (C) ). Restricting access to information should be limited in time, which also requires regular review of decisions and their relevance (Principle IV.d) If the illegal content is on a certain page, then access should be limited only to this page, but not to the whole site.

An important criterion for ensuring the active participation of intermediaries in the self-regulation of online legal relations is the existence of transparent and fair rules of the game, or rules for restricting information that should be published on the Internet “in an accessible format and … simple language”, open for updates, as required with mandatory notifying users about them (Principle VI. (c)).

V. Laws and rules for restricting access, as well as the practice of their application, must comply with the procedure

The norms of this principle call on the participants of legal relations online to be guided by the same above-mentioned criteria in order to ensure law enforcement, according to procedural legislation. The same well-known rules of the information broker should be developed and applied with a focus on “respect for human rights”, for which the government is called upon to supervise “that the rules of the mediators on restricting access to information ensure respect for human rights.” (Principle V. (f)).

Both the mediator and a third party, for example, the content holder, have the right to appeal the decision to restrict access within the time limits established by law (Principle V. (b)), and if the court of second instance satisfies the complaint of the claimant, and also decides to cancel the decision of the court first Instance, the access restriction should be terminated, and the resource should be excluded from the register of information recognized as prohibited in the territory of the Kyrgyz Republic.

According to this principle, the communications provider is not entitled to disclose data identifying the user without a decision of the judicial authority (Principle V. (e)). Such a requirement should be included in the rules for restricting access to information of the mediator. The document also provides a mechanism to ensure the possibility of an “independent assessment of the value, reasonable benefits” of rules and practices on human rights (Principle VI. (G)).

In the Kyrgyz Republic, there is no experience in applying this principle, since in court practice there have not yet been cases of appeal by a mediator or a third person in a higher instance of a local court decision.

VII. Transparency and accountability are required to be part of laws, practices for restricting access to information

The final principle of the document comes from the fundamental criteria of transparency and accountability of respect for human rights, legal relations in general and the judicial system in particular. This means that all legislation on the restriction of information on the Internet should be publicly available, as well as court decisions on restricting access to information on the network (Principle (VI.a)), as well as the rules of the access restriction mediator (Principle VI . (c)). Governments “should not use extrajudicial measures to restrict access to information” (VI.b). There should be no extrajudicial blockages by the state, as well as pressure from the latter on communication providers and coercion of the second to restrict access to any resource on the Internet without a court decision. Communication providers, in turn, should receive accurate information from the state about court decisions and measures to secure a claim (if any), and also have a clear notice to users explaining the reasons for restricting access to information on the Internet (Principle VI. (E)).

The state should annually provide information on current changes in the legislation of the industry, as well as on all adopted court decisions, rulings and statistics on the official website of the authorized state body are also welcome. The norms of the principle also call on governments, mediators and civil society to “join forces to develop and support independent, transparent and impartial mechanisms to control the rules and practices of restricting information” (Principle VI. (F)).

The document also provides “regular systems audit of rules and recommendations” as a mechanism for controlling rules and practices of restricting information (Principle VI). It aims to ensure the relevance, effectiveness, ease of application of these restrictions, taking into account their impact on human rights (Principle VI. (G)). The criteria of the mechanism are determined by the independence, transparency and impartiality, the presence of which can guarantee multi-stakeholder integration of the efforts of the government, intermediaries and civil society (Principle VI. (F)).

To ensure the functionality of the mechanism “the responsibility of intermediaries and legislation should provide for a regular system audit of rules and recommendations. An audit should also provide an opportunity for an independent assessment of the value, reasonable benefits and impact of these rules and recommendations on human rights (Principle VI. (G)).

In our opinion, in matters of promoting self-regulation based on the principles reviewed, the Kyrgyz Republic has several advantages:

  • Legislation in the field of these restrictions on access to information are already fully represented by Chapter 25-2 of the Civil Procedure Code of the Kyrgyz Republic;
  • The practice of restricting access to illegal information is being formed;
  • A partnership is being established with national and transnational intermediaries (content holders) to limit, and even remove, illegal content.

However, official recognition of the following success factors in Internet governance matters is needed:

  • regulation of legal relations, and not a technical limitation of the network, taking into account the criteria of necessity and proportionality, transparency and accountability in order to strengthen human rights and the priority of national interests over departmental ones;
  • formation of a multilateral mechanism of control over the rules and practices of limiting information;
  • the presence of creative and legal potential for the transformation of the country from the outskirts of the Internet to its very core.

In the partnership of the parties, in the framework of the iLab project, a draft Instruction on maintaining a register of materials prohibited by the court on the territory of the Kyrgyz Republic on the Internet, as well as a draft regulation On the interaction of government agencies with communications providers to limit access to prohibited information were prepared. Developed taking into account the above principles, both documents were presented to the domestic Internet community and they are expected to be discussed in meetings with authorized bodies regulating issues of restricting access to illegal information.

Another advantage of the domestic regulation of legal relations in the network can be an understanding of the advantages of the concept of “take-down” illegal content in relation to the traditional concept of “blocking”, refinement and adoption of the corresponding regulations with integration into the new concept. This approach is designed to ensure regulation of legal relations in the network, in which partners are the business community, civil society and transnational service providers.

The material prepaired by Digital Report 

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