on intermediary liability
If you operate your own website, be glad that you don't host it in South Korea (or if you do, you might want to rethink that). Whereas in the United States, an important law called CDA 230 protects you from liability for comments contributed by users to your website, South Korea has some of the toughest liability rules in the world that can leave intermediaries such as website owners carrying the can for content they didn't even know about.
First, they are required to remove content for a minimum of 30 days on receipt of a complaint, without it being assessed by a court or judge—under the U.S. DMCA a similar obligation applies only to complaints of copyright infringement, but in South Korea it applies to other speech such as alleged defamation, and the takedown obligation is imposed independently, rather than merely as a method of gaining safe harbor from potential liability.
Second, South Korean intermediaries can be held liable for “clearly illegal” content even without a complaint being made, and even if they were not actually aware that they were hosting it. All that is required is that it's “apparently clear that the provider could have been aware” of the content, which effectively creates a general obligation for them to monitor all user uploaded content.
Third, all South Korean intermediaries are subject to an obligation to proactively filter out child pornography, and for certain intermediaries—cloud storage services and peer-to-peer services—this filtering obligation also extends to copyright-infringing and ill-defined “obscene” content. Their failure to do so attracts criminal penalties.
Rules like these are what prompted EFF to take the Manila Principles on Intermediary Liability to South Korea last week, where we spoke to lawmakers, intermediaries, and users at the invitation of local advocacy group Open Net Korea, pointing out how South Korean law infringes the principles by holding intermediaries liable for failing to restrict lawful content, requiring content to be restricted without a judicial assessment of its illegality, and imposing a general monitoring obligation.
Open Net has written an open letter to South Korean legislators which reiterates these points and makes concrete proposals for reform, and is seeking endorsements for it from the international community of users. (Please take a minute to do that now, and then resume reading!)
Asia-Pacific Stakeholders Weigh in on Intermediary Liability
Following our South Korean day of action, EFF presented the Manila Principles to governmental, industry, and civil society representatives at the Asia-Pacific Regional Internet Governance Forum in Macau, where other delegates also shared their perspectives of the importance that limiting intermediary liability carries in supporting freedom of expression and innovation in that region.
At an EFF-organized workshop, Ksenia Duxfield-Karyakina from Google's Hong Kong office spoke about the role of intermediary liability protection for digital economy and APAC startup ecosystem. We also heard from Jennifer Zhang from the Hong Kong Transparency Report about how local intermediaries are supporting freedom of expression, including their Who's On Your Side report that was inspired by EFF's Who Has Your Back. Finally Prof Hong Xue from Beijing Normal University spoke about the applicability of the Principles in the context of the Chinese Copyright Law and E-Commerce Law. (Our presentation slides are below, and the others will be added when available.)
But how Internet intermediaries are held liable for speech of their users is hardly just a problem limited to Asia. Last month, the decision in the Delfi case shocked commentators by establishing the liability of an Estonian news portal for user comments that it hadn't read, and that it had removed once notified of them. And rightsholders, along with certain European governments, would like to see this decision extended, through the revision of the E-commerce Directive to lessen the protection from liability for “active” intermediaries such as social media platforms and news portals, compared with that enjoyed by “passive” intermediaries such as simple web hosts.
It is timely, then, that we relaunch the Manila Principles as a truly global resource, that activists can use in their battles for intermediary liability protection around the world. Today we are therefore proud to release the Manila Principles in eight new languages: Français, Español, Português, Русский, 简体中文, 한국어, ภาษาไทย, and العربية. This includes the principles themselves, the downloadable PDF versions, and in most languages also the Frequently Asked Questions, and the underlined terms for which definitions appear when you hover over them. The supporting background paper and jurisdictional analysis, being longer, are only available in English for now.
With our partners from around the world, we are now better resourced to engage with policy makers in many more countries about the importance of limiting intermediaries' liability for content of their users. If you haven't already done so, now would be the perfect time to endorse the Manila Principles, to indicate to policymakers and intermediaries alike the global breadth and depth of support for rules, policies, and practices on intermediary liability that support freedom of expression and innovation.