Intermediary Liability and Child Pornography: A Comparative Analysis
| Author | Anjali Anchayil; Arun Mattamana |
| Position | II Year, B.A. L.L.B. (Hons.) National Law School of India University, Bangalore, Karnataka, India Email: arunbmattamana@gmail. com anjalianchayil@gmail.com |
| Pages | 48-57 |
This paper was originally published in Kierkegaard, S. (2009) Legal Discourse in Cyberlaw and Trade .IAITL.
Page 48
Internet activity is composed of packets of data, which are sent over privately owned networks.1 However this service has to be provided by a group of service providers known as intermediaries. They consist of service providers, web hosting companies, bulletin board operators, search engines etc. which facilitate and process hundreds of millions of data transfers every day and host or link to literally billions of items of third party content.2
Intermediaries are defined by the Information Technology(Amendment) Act, 2008 of India as "with respect to any particular electronic records, any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes. "3
The intermediaries can be classified into various groups according to the functions they perform, which include communication gateway providers, permanent data hosts, transitory data hosts and linking intermediaries. Permanent hosts provide a permanent storage for the uploaded files while the transitory data hosts provide temporary storage. At the same time linking intermediaries provide a platform for hyperlinks that lead to other locations on the net.
The role and liabilities of intermediaries has been under the scanner in recent times due to the development of the internet in ways that had probably not been imagined by the inventors of the Web. The anonymity and ease of access provided by the internet has resulted in pedophiles making it their modus operandi to lure children. Chat rooms, bulletin boards, discussion groups, social networking sites etc have been used as platforms for spread of child pornography. In such situations, the question of who should be held responsible for the criminal activity becomes important. Intermediaries seemed a viable option as they have the ability to regulate the content online at very minimal costs. The main debate in this regard has been about the nature of liability to be imposed on them. Should a strict liability regime be enforced or a fault based liability regime?4 With a strict liability system, an ISP will be held liable regardless of its knowledge and control over the material that is disseminated through its Page 49 facilities. In a system based on fault,5 an ISP would be held responsible only if it intentionally violates the rights of others6 or takes part or permits the trade after having knowledge of the content itself.
This article makes an argument against the imposition of intermediary liability in instances of child pornography through a comparison of legislations and developments in case law in three regimes. A comparative analysis of the systems in the United States and the European Union countries, as against India, a developing country, has been employed to evolve an ideal regime. This caters to the objective of prevention of child pornography while promoting development of better and more interactive Internet services. The second section deals with the approach taken by the United States against child pornography by evaluating the legislative measures and the stand taken by the judiciary in interpreting them. It also deals with the European Union's approach and the national legislations enacted to conform to it. The section additionally looks into how a developing country like India has included provisions dealing with cyber pornography along with facilitating growth of Internet services. The last section proposes alternative options to imposition of intermediary liability.
The United States has the infamous reputation of being the largest market for child pornography.7 With the coming of the Internet, its transmission has become easier, faster and secure. Large scale sale and dissemination of pornographic material takes place online through chat rooms, discussion groups, bulletin boards, websites etc. Concerns about the exposure of children to child pornography, child sexual tourism, pedophilia etc has led the US to enact a number of federal as well as state legislations to combat the menace of pornography online. This section deals with the position of intermediaries in the US and how far liability has been attached to them in the laws enacted to combat pornography.
Miller v. California 8 laid down a three-point test for obscenity. The standards laid down in this are as follows i) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law iii) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Miller test has stood the test of time for more than a quarter-century. The applicability of the Miller test to the Internet is debatable, as (which?) immunity standards have to be applied is unclear in the definition.9 Is it the standards applicable in the jurisdiction from which the purveyors send the material or the standards applicable in the receiver's country? These issues have largely been settled by the courts using expert testimony from various individuals in diverse fields, community polls, etc., 10with the effect that the Miller test still remains the conclusive test for obscenity till date. It was also held in Ashcroft v. American Civil Liberties Union11 that for the purpose of the Child Online Protection Act which prohibited commercial display of sexually explicit materials harmful to minors on the Web, community standards do not have to be defined with reference to a particular jurisdiction or geographical area, which was found to be a fundamental flaw in the Miller test.
The question of intermediary liability evolved with time as the legislative framework developed to include regulation of the Internet. The US enacted the Child Pornography Prevention Act in 1996, which defined child pornography broadly so as to include computer-generated images of children also. Though the Child Pornography Prevention Act sought to prosecute pedophiles, it did not say anything about the prevention of exchange of pornographic materials over the Internet and as such did not apply to intermediaries.12
The courts initially employed the theories of direct liability whereby the online intermediary was held liable for the subscriber's behaviour, contributory liability if the ISP having knowledge of the infringing activity induced, caused or materially contributed to the user's infringing activity or vicarious liability if the ISP had the right and ability to monitor the actions of the subscribers, neglecting to do so and profited from the infringing Page 50 activity.13 The Digital Millennium Copyright Act and the Communications Decency Act were enacted which brought in a certain degree of immunity to the ISPs as it recognised the perils of such regulations as stifling growth, slowing innovation and (as involving) too much censorship.
The question of regulation of content online has always been subject to much debate due to the conflict with freedom of speech guaranteed by the First Amendment. Obscenity is out of the purview of protection given by the First Amendment. However, courts in the US have always applied a strict scrutiny test to statutes abridging speech excluded from protection by the First Amendment.14
The privilege created by section 230(c)(1) of the Communications Decency Act (hereinafter referred to as CDA), 1996 has guaranteed free speech on the Net by giving immunity to the provider or user of an interactive computer service for the information flowing through their networks.15 The CDA encourages voluntary action on the part of ISPs by granting them immunity if they take measures to restrict access or availability of material that the provider considers to be obscene in content.16
In Zeran v. America Online11, the court denied a claim against AOL on the basis of distributor liability. In the suit for negligent dissemination of information, AOL pleaded immunity under section 230(c) of CDA. The court expanded the immunity provision so as to give protection to ISPs from suits based on both publisher and distributor liability. Treating AOL as a distributor of the information and subjecting it to the knowledge or reason-to-know standard would be equivalent to considering it as a 'publisher or speaker' of third-party information. Therefore, the court held that distributors are 'publishers' encompassed by the immunity provision.18 This case where it was held that section 230(c) "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service" irrespective of whether the ISP was acting in the capacity of a publisher, distributor or both has broadened the scope of immunity granted, ISPs have escaped liability in most cases including pornography which is not granted protection under the First Amendment through the immunity granted by Section 230(c) of the CDA. Through judicial interpretation, courts have taken the trend away from ISP liability thus pre-empting state laws which would otherwise have required the ISPs to take due care.19
The case Doe v. America Online20 is illustrative of how section 230...
To continue reading
Request your trial