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Internet intermediaries’ liability

Internet intermediaries are the agents in the information communication process between the generators of the different contents on the network and the users as final recipients of the communication, but they do not necessarily take part in the process of creating or selecting the information that circulates through their servers, and that in the dissemination of that information they do not participate in the selection of their receptors, in such a way that their function is limited to technically enabling computer, communication, broadcast or telematic processes. There are different types of intermediaries, such as Internet access providers, storage providers (temporary or hosting), link providers or search engines, e-commerce, etc.

In recent years there have been various discussions regarding the liability that these actors may have in relation to the different content that third-party users of their services disseminate, store, make available to other users, communicate, publish, etc., through the services of these intermediaries, and that cause damages or losses to third parties.

In Colombia, unlike other places in the world such as the United States of America or several European countries, there is no special liability regime for Internet intermediaries. The liability regime for damages applicable to Internet intermediaries in Colombia is exactly the same as that generally applied to any other activity, that is, a regime of subjective civil liability, since the law does not provide for a presumption of fault (or objective) for Internet intermediaries.

On the one hand, for example, in the United States, there is a special liability regime for certain events. The Digital Millennium Copyright Act (DMCA, 1998) establishes a system of intermediaries liability in cases of alleged copyright infringement, called Safe Harbour, which establishes a series of conditions for intermediaries to be exempted from all liability for copyright violations incurred by their users, as long as  the intermediaries do not modify the infringing content and remove the alleged infringing content or disable access to it, as soon as they receive a notification from the copyright holder, in accordance with the Notice and Takedown procedure, established in the DMCA. This procedure requires for the alleged copyright holder to request the intermediary to remove the allegedly infringing content, and that the intermediary within a certain period removes the content and counter-notifies the infringing user of such request. While this model has proved to be highly expeditious, it has been widely criticized for being entirely extrajudicial, because there is no certain assessment of actual copyright infringement (e.g., an assessment by a judge or even proof of the alleged violation), and for possible threats to freedom of expression.

The European model differs somewhat. In this system, established by Directive 2000/31/EC, intermediaries are directly responsible for their actions, and had no responsibility for the actions or contents of their users as long as they did not have effective knowledge that the content was infringing. Effective knowledge is determined when the competent authority has declared the illegality of a content and the intermediary, notified of that decision, does not withdraw it. Subsequently, in the field of intellectual property, Directive 2019/790 was issued, which provides (Art. 17) that intermediaries used by users to upload content could not, from now on, benefit from the existing disclaimer regime and must have authorization from the owners of the contents or, alternatively, to make its best efforts to ensure the unavailability of the protected works and other subject-matter.

In Colombia, the implementation of a system of special liability for intermediaries has been discussed at the legislative level on several occasions. Likewise, in several judicial debates. In particular, the great discussion regarding whether to determine the responsibility or not of Internet intermediaries in relation to the contents or materials made available or publicly communicated by users or third parties, has revolved around the role that these intermediaries play in terms of freedom of expression (both at the level of our Constitution and the American Convention on Human Rights).

The Joint Declaration on Freedom of Expression made on June 11, 2011 by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Representative for Freedom of the Media of the Organization for Security and Cooperation in Europe (OSCE), the Special Rapporteur of the Organization of American States (OAS) for Freedom of Expression and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples' Rights (ACHPR), states that: "2. Liability of intermediaries to. No person who offers only technical Internet services such as access, search or retention of information in the cache should be responsible for content generated by third parties and disseminated through these services, provided that he does not specifically intervene in such content or refuse to comply with a court order requiring its deletion when he is in a position to do so ("principle of mere transmission").  (...) 3. Filtering and blocking  (...) b. Content filtering systems imposed by governments or commercial service providers that are not controlled by the end user constitute a form of prior censorship and do not represent a justified restriction on freedom of expression.  (...)."

Likewise, there has been important jurisprudence of the Constitutional Court related to the possibility of ordering Internet intermediaries (search engines) to suppress search results, where it was concluded that in the absence of responsibility for the content, actions against them should not succeed. In several judgments, such as T-040 of 2013, T-277 of 2015 and SU-420 of 2019, especially in the latter, the Court has said that intermediaries are not responsible for the content published by their users, since establishing this responsibility would lead to limit the dissemination of ideas and give them the power to regulate the flow of information on the network, consequently, the responsibility lies with the offending user. Similarly, the Court has laid down several important rules. First, it is up to a judge to determine the legality or otherwise of the content on the Internet and not to a private entity. Second, even though they are not responsible for the content their users post, if a judge finds that a piece of content is infringing, they can order its removal directly from intermediaries. Third, intermediaries have no general obligation to monitor or monitor content and cannot pre-censor user content.

This Colombian system of responsibility, strongly different from the American or European one, has allowed the correct balance of rights and guarantees in the information society.

Authors

Portrait ofLorenzo Villegas-Carrasquilla
Lorenzo Villegas-Carrasquilla
Partner
Bogotá