Abstract: The aim of the OECD workshop on "The Role of Internet Intermediaries in Advancing Public Policy Objectives" was to discuss and identify lessons learned from experience to date of Internet intermediaries in helping to advance public policy objectives. Participants discussed the roles and responsibilities of Internet intermediaries for actions by third-party users of their platforms, their nature and extent and implications.
Karine Perset, Economist/Policy Analyst, Information and Communications Policy Division, OECD Secretariat, chaired the workshop. She introduced the OECD’s project on Internet intermediaries, of which the goal is to obtain a comprehensive view of Internet intermediaries, including their economic and social functions, benefits and costs, and potential roles or responsibilities. She proposed a working definition of Internet intermediaries that give access to, host, transmit and index content originated by third parties, or provide Internet service to third parties. She identified six main categories of Internet intermediaries: Internet service providers, hosting providers, search engines, e-commerce platforms, payment providers and participative network platforms. She noted that the project essentially deals with the critical balancing act between protecting intermediary functions that are socially, economically or politically valuable, while at the same time taking into account other and potentially competing policy goals, such as protecting security, privacy, intellectual property rights or consumers.
Lilian Edwards, Professor of Internet Law at Sheffield University, provided a broad overview of the legal frameworks applying to Internet intermediaries, especially in Europe and the United States, by describing the EC Directive on e-commerce in Europe (ECD) and the Digital Millennium Copyright Act (USA), the latter complemented by the Communications Decency Act. She said that, despite the overall success of the notice and take-down paradigm of the year 2000, content industries now tended to view these regimes as less appropriate than before. She also stressed that other content issues such as child pornography and hate speech have raised issues concerning filtering and deep-packet inspection, and that cyber-security concerns have further raised the pressure to consider potential liability on ISPs. She pointed out changes she perceived: i) in the Web 2.0 era, that the distinction between hosts and content providers was less clear; ii) that intermediaries are starting to develop the technical and practical ability to inspect and remove certain types of content (e.g., Google’s Content ID), and; iii) ISPs are no longer an emergent business. She raised the following questions: i) whether a regime of special immunities for intermediaries is still needed, ii) which rules should be attached to ex-ante methods, if adopted, to ensure human rights, transparency and due process; iii) whether a ‘one-size-fits-all’ approach such as the ECD was still desirable, and; iv) whether new rules for intermediaries that have emerged since 2000 are needed (e.g., search engines, online auction sites).
Marc Berejka, Senior Policy Advisor, Office of the Secretary, U.S. Department of Commerce, spoke about the creation of section 230 of the Communications Decency Act. He said that a policy choice had been made in 1995 to apply the strong liability limitations that had traditionally protected common carriers’ to Internet intermediaries (‘interactive computer services’). He expressed the view that such liability limitations had contributed to the economic success of the Internet industry. He noted that this system, however, was under strong pressure globally, in particular from the content community, and that the preferred approach in the United States was that of negotiations between private parties. He further noted that pressure from other jurisdictions on US-based Internet intermediaries has a greater impact than before, reinforcing the case for some form of international harmonisation of approaches. He concluded his remarks by mentioning the Internet policy task force formed at the U.S Commerce Department to help develop leading thoughts around Internet policy.
Joseph Alhadeff, Vice President for Global Public Policy and Chief Privacy Officer for Oracle Corporation, emphasised the need to consider the entire ecosystem rather than just Internet intermediaries. He warned that exerting all the control through the choke points may not be appropriate and that only part of this responsibility should be placed on Internet intermediaries. He noted the different interests at stake and the need to consider the different sizes of companies and their different business models when thinking about good practices and the way they are applied. He also stressed the need to define the concept of “intermediary” more specifically.
Anne-Lena Straumdal, senior adviser at the Department for ICT policy and public sector reform in the Norwegian Ministry of Government Administration and Reform, stressed the importance of cross-ministry co-operation and of a whole-of-government approach in considering the role of intermediaries in advancing content-related public policy objectives on the Internet. She pointed out the need for governments to fully understand the role that Internet intermediaries play in the Internet economy, for informed policy-making. She stressed the following ICT goals that are important to Norway and to other OECD countries: i) ensuring security and trust; ii) keeping a resilient infrastructure in place; iii) promoting democratic engagement, and involvement, particularly freedom of speech; iv) ensuring that the Internet remains an open and non-discriminatory platform for all types of content distribution; and v) stimulating innovation and creativity. She warned that businesses are struggling to find business models, and noted the importance of helping them to perform their activities. She mentioned a government initiative to handle requests from individuals whose private information has been violated online (e.g., false Facebook profiles).
Pedro Less Andrade, Senior Policy Counsel – Latin America, Google Inc., described Google’s Content ID service that helps to meet consumer expectations while also enabling copyright holders to decide if and how their content is used on YouTube’s video sharing platform –e.g. shared, blocked, or monetised with advertisement–. He noted the complementary nature of the copyright and Internet industries, as exemplified by the VCR and its role in helping the content industry to flourish despite initial fears of illegal copying of television programming. He pointed out that, despite the hypothetical ability of intermediaries to filter content, providing liability immunities to intermediaries continued to be critical to enable them to develop new collaborative technologies, including technologies to help the content industry. He stressed that liability limitation encourages investment in devices and new technologies. Pedro Less Andrade highlighted Chile’s first copyright reform, which takes the Internet into account. He explained that this reform implements a method of forwarding of notices and judicial take-down, whereby a copyright holder may send a notice to an ISP about copyright infringement. The ISP’s only obligation is to forward notices received to the user. The user then has the choice between abiding by the notice, ignoring it, or replying to the copyright holder directly to provide an explanation. If the user ignores the warning, the copyright holder may decide to take legal action.
Brenton Thomas, Assistant Secretary of the Spectrum and Wireless Services Branch of the Australian Government Department of Broadband, Communications and the Digital Economy, described the Australian Internet security initiative (AISI), mentioning that it started as a project to monitor traffic flows in order to detect malicious software or botnet behaviour. This information is now gathered in reports and sent to ISPs who can if they wish to use it to help their customers become aware of security issues or take action to clean their computers. ISPs use the AISI reports to notify their customers if their computers have a security problem. He emphasized that this initiative is one of many examples of how governments and industry - Internet intermediaries in particular - can work together to get a good outcome. Brenton Thomas described the development of a voluntary ISP cyber-security code of practice, to ensure consistency between cyber-security messages provided by different ISPs to their customers. This code contains four elements: i) notification and management system for compromised computers; ii) standardised information resource for end users; iii) a comprehensive resource for ISPs to access the latest threat information, and; iv) a reporting mechanism, in cases of extreme threat, to facilitate a national high level view of an attack status.
Mark MacCarthy, Professor, Georgetown University, warned that relying on Internet intermediaries to make subjective determinations of the legality of actions, is placing a burden on them. He stated that government determinations should be responsible for stating the legality of activities. He noted the difficulty for Internet intermediaries to know whether the content they host contains defamatory content or not.
Kurt Opsahl, Senior Staff Attorney, Electronic Frontier Foundation, started his remarks by stating that good practices must consider the overall social cost and externalities, especially the costs to users, to their freedom of expression, to their privacy, and the cost to innovation. He mentioned that Internet intermediaries are not positioned to both externalize negative things caused by users and also permit positive social outcomes. He noted that despite the fact that the Internet is not an emerging market anymore, innovating models are still rising every day and there is a need to foster this continuous innovation. He warned that automated solutions and systems are ineffective in a wide variety of potential online problems (e.g., defamation, privacy).
The Chair, Karine Perset, launched the discussion by inviting participants to comment a list of draft good practices developed based on research at OECD, on discussions with relevant stakeholders, and on the Experts Workshop on Internet Intermediaries, held on 16 June 2010 in Paris, France. Joe Alhadeff mentioned that not all practices are applicable to all situations, but they create a superset of concepts to consider and a solid basis for conversation going forward. Lilian Edwards highlighted the economic side and the cross-border nature of the guidelines and mentioned that they are a step in the right direction.
Following a question from the audience about non-professional Internet intermediaries (e.g., bloggers), Lilian Edwards stressed the importance of considering the different sizes of intermediaries. Kurt Opsahl also reacted to this question stating that even individuals can be intermediaries and thus, are included in Section 230 of the Communications Decency Act.
The issue of public interest was raised by a member of the audience, who noted the need to prioritise the implementation of human rights on the Internet, and stated that this was a common duty shared by government, industry and civil society. Karine Perset and Brenton Thomas agreed that the public interest is a fundamental priority and that all relevant stakeholders should be involved in pursuing this goal.
Karine Perset responded to a member of the audience who inquired about the methodology used to determine who is considered a relevant intermediary and who isn’t, stating that this issue has to be determined on a case-by-case basis and depending on the issues involved. Pedro Less Andrade highlighted the importance of considering as many stakeholders as possible, even individual users.
A member of the audience inquired about possible international solutions for cases like governments blocking content from an intermediary, mentioning the case of YouTube being blocked in some countries following government decisions. Pedro Less Andrade noted that Internet intermediaries face significant pressure from governments and are required to comply with their decisions. He further noted that excessive pressure over the intermediaries could affect freedom of speech..