Accountability 2.0: Towards a Special Responsibility for Internet Intermediaries

Abstract

On May 16th, 2011, the UN Special Rapporteur for the Promotion and Protection of the Right to Freedom of Opinion and Expression issued its Annual Report to the Human Rights Council, devoted to the issue of freedom of expression on the Internet. The Report highlighted inter alia a number of challenges to the enjoyment of such right in the cyberspace, including arbitrary blocking and filtering of content, disconnection of users from the Internet and inadequate protection of the right to privacy. While the need to tackle these problems has been recognized and discussed in multiple fora over the last decade, both the strategic use of Internet and communication services by the Egyptian and Syrian regimes and the recent discovery of the existence of extensive surveillance conducted by the United States’ National Security Agency brought to the fore the instrumental importance of overcoming some of these challenges for the promotion of democracy. In fact, in all three examples mentioned above governments faced the technical obstacle of having to request the intermediaries of information on the Internet (namely, internet providers, social networks and search engines) to shut down specific user accounts, provide user data, or limit the scope of their services altogether. In light of the rights and principles highlighted by the Special Rapporteur, this paper poses the questions of what international law has to say regarding these practices, and importantly, how compliance with international law can be secured (or at least, induced) in this domain. For this purpose, the paper focuses on the role of Internet intermediaries in enabling or preventing the violation of human rights, and more particularly, freedom of expression and privacy. After defining the category of intermediaries (section 1) and the international rules and standards applicable to this type of interaction (section 2), a third section of the paper proposes interpretative criteria that would enable Internet intermediaries not only to function as effective “choke points” for illegal content, but also to stand up against flagrant violations of fundamental rights.