Internet intermediary liability: Identifying best practices for Africa
, November 2013
The role of intermediaries in global networked communication is ubiquitous. All producers of content on the internet have to rely on the action of some third party–the so called intermediary–in order to reach their recipients. Such action of intermediation ranges from the mere provision of connectivity, to more advanced services such as a specific type of communication tool or platform. For example, email and blogging space, or the indexing of the content through a search engine, or a human compiled index or directory (also known, collectively, as information location tools). Because of the substantial impact that the products and services offered by companies or organisations can have on the unfolding of internet communications, they find themselves potentially at legal risk for the communication and distribution of content which they enable. Specifically, they can be held either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. While this can be seen as an unavoidable consequence of the services these intermediaries have chosen to provide, it is important to recognise that such liability can have a significant deterrent effect on their willingness and ability to provide services, and therefore may end up hindering the development of the internet itself. For this reason, legislators around the globe have defined special “comfort zones” for the operation of intermediaries, also known as “safe harbours”, limiting the liability of such entities in specific sets of circumstances.
As this background paper illustrates, significant differences exist concerning the subjects of these limitations (Section 2), their scope (Section 3) and their modes of operation (Section 4). Nevertheless, international best practices can be identified that may provide useful guidance for the drafting or the improvement of the current legislation in a number of African countries.
To that end, this background paper addresses the normative context among African Union members informing the main challenges and opportunities in addressing intermediary liability legislation (Section 5). It then draws on the concept of human rights outlined in the discussion of the African context to highlight safeguards that should be included in the intermediary liability regimes (Section 6). This is followed by a brief summary and some conclusions (Section 7).