FOUNDATION FOR LIBERTY AND

PROSPERITY
2017 DISSERTATION CONTEST

LIBERTY AND PROSPERITY IN THE DIGITAL AGE:

DETERMINING THE PROPER TREATMENT OF
ONLINE INTERMEDIARIES IN LIGHT OF THE
UNITED NATIONS GUIDING PRINCIPLES ON
BUSINESS AND HUMAN RIGHTS

TESS MARIE P. TAN

JD CANDIDATE, USC LAW CLASS OF 2018
2018
 DEDICATION

For my Jordan;
because of whom, something changed.

ii
 ACKNOWLEDGMENTS

With all I am, and all I will ever be, I thank God Almighty for sustaining me
and giving me strength. He has been faithful to His word, and He prepares a table
for me in the presence of my enemies.

I thank Dean Joan Largo, for refusing to let me wave the white flag; who
walked in, when the rest of the world walked out. My words had never failed me
until I had to think of how I can express my gratitude to her. I have not only been
blessed; I have been divinely favored to have her in my life.

I also thank Atty. Daryl Bretch Largo, for being my coach in and out of the
moot court, and Atty. Emmanuel Gimarino, for putting food on my table, and a roof
over my head, when I had no one else to turn to. I have the deepest respect and
utmost admiration for these men who give flesh to the phrase ‘father by love, not
blood.’

I thank (ret.) Chief Justice Artemio Panganiban for affording me the privilege
of being an FLP scholar for AY 2016-2017. For someone who had nothing, that
timely blessing was everything. I would not have been able to pursue my legal
education without the FLP, and for that I shall always be grateful.

Finally, I thank my friends, most especially my brothers and mooting team

mates, Vincent Cesista, Jonah Mark Avila and Rashid Pandi. We have traveled the
world and back, and found home in each other.

iii
 ABSTRACT

The Internet is part of today’s daily life. It is where we get the

news, connect with friends and family, conduct business, or simply
unwind. It has become a transformative tool for commerce and
communication, providing a dynamic avenue for businesses to grow,
and rights to be exercised. However, because of the wide reach of the
Internet, its benefits do not come without risks. Due to its inherent
connectivity with the entire world, violations of individual liberties
often produce irreversible consequences, with trans-border impact.
This subjects the players in the digital ecosystem at risk of incurring
financial and reputational repercussions.

This paper inquires into the responsibility of businesses for

violations of human rights done online. In this present age where
liberty and prosperity are so uniquely intertwined in the digital
landscape, this dissertation explores how the rule of law strikes a
balance between human rights and business using the UN Guiding
Principles.

iv
 TABLE OF CONTENTS

PRELIMINARIES
DEDICATION ii
ACKNOWLEDGMENT iii
ABSTRACT iv
TABLE OF CONTENTS v - vi
INDEX OF AUTHORITIES vii - xvii

PART I: INTRODUCTION
RATIONALE 1- 4
STATEMENT OF THE PROBLEM 4–6
OBJECTIVE OF THE STUDY 7–8
SIGNIFICANCE OF THE STUDY 8 – 10
METHODOLOGY/RESEARCH DESIGN 10 – 12
SCOPE AND LIMITATION OF THE STUDY 13
REVIEW OF RELATED LITERATURE 14
ORGANIZATION 15-16

PART II: DISCUSSION AND ANALYSIS

A. FREEDOM OF EXPRESSION IN THE INTERNET 15-16
B. ONLINE INTERMEDIARIES 16 – 17
REGIMES OF INTERMEDIARY LIABILITY 18 – 20
C. CASE LAW ON INTERMEDIARY LIABILITY 21
THE YAHOO! CASES: FRENCH INTERIM ORDER, AND
22 - 23
AMERICAN DECLARATORY RELIEF
DELFI AS V ESTONIA: LIABILITY FOR USER-GENERATED
23 – 26
COMMENTS
MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND 26 – 28
INDEX.HU ZRT V HUNGARY
D. UNITED NATIONS FRAMEWORK ON BUSINESS AND HUMAN
28 – 30
RIGHTS
THE PROTECT, RESPECT AND REMEDY FRAMEWORK 30 – 33

v
PART III: CONCLUSION AND
34 – 36
RECOMMENDATIONS

BIBLIOGRAPHY

vi
 INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention for the Protection of Human Rights and Fundamental
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International Covenant on Civil and Political Rights, (adopted 19

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Universal Declaration of Human Rights (adopted 10 December 1948)

UN General Assembly Resolution 217A (III) 2, 9

STATUTES
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CASE LAW
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vii
U.S. v Ocampo, 18 Phil. 1 (1910) 5
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viii
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ix
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xvii
 PART I
INTRODUCTION

Liberty is a right that inheres in every one of us as a member

of the human family. When a person is deprived of his right,
all of us are diminished and debased for liberty is total and
indivisible.1

Liberty takes on different shades. It is a universal concept with

varying peculiar incarnations. To an innocent man accused of
wrongdoing, it is exercising his right to be heard; while to a wrongdoer
feigning innocence, it is enjoying his right to remain silent.

As human nature continues to evolve, new narratives affect the

way society perceives and exercises human rights. Because they are
inherent and indivisible, these rights necessarily adapt to the changing
realities of the time.

In this Web 2.0 era2, the average person transforms from being
an ordinary citizen, encumbered by societal norms and burdened with
rules of conduct, into a netizen – a virtual manifestation of one’s
innermost desires; an avatar whose dominion is limited only by his
imagination.

Cyberspace is today’s playground. It is where we get our

information, ramble about the trivialities of daily life, speak out
against oppressive rulers, make friends, even find love. With the
transformative nature of the Internet, increasing an individual’s ability
to access and disseminate information 3 , raw ideas, honest thoughts
and candid opinions are catapulted into the public sphere with a mere
press of a button, without fear or inhibition. At no other point in time

1 Ordoñez v. Director of Prisons, G.R. No. 115576, 4 August 1994, 235 SCRA 152.
2 Human Rights Committee, General Comment No. 34 (“General Comment 34”), UN Doc
CCPR/C/G/34, 12 September 2011.
3 UN Human Rights Council, ‘Report of Special Rapporteur on the Promotion and Protection of

the Right to Freedom of Opnion and Expression, (16 May 2011)UN Doc A/HRC/17/27,
(“May 2011 Report”) ¶20.
1
has society been able to exercise its freedom of expression4 with such
ease.

As a convenient and potent medium for discourse and

dissemination, it has now become imperative for multinational
corporations and other business enterprises to have an online presence
in order to be competitive in the global market.5

Small-scale retailers without enough capital for a physical store

are able to market their goods. Businesses are able to advertise and
reach millions with online marketing tools. Entrepreneurs are afforded
a rolodex of potential new clients and partners through networking
sites. The Internet is the new center of trade.

In the United States for example, Internet Service Providers

(“ISPs”) accounted for $68 billion in revenue for 2008.6 Philippine e-
commerce revenue accounted for $1.3 billion in 2016, and is projected
to reach $9.7 billion by 2025.7 Social media platforms continue to grow
exponentially, with major players like social networking site Facebook
and microblogging site Twitter having 2 billion8 and 328 million users
a month,9 respectively.

4 Article 19, International Covenant on Civil and Political Rights (“ICCPR”) (adopted 19 December
1966, entered into force 23 March 1976), 999 UNTS 171; Article 19, Universal Declaration of
Human Rights (“UDHR”) (adopted 10 December 1948) UN General Assembly Resolution
217A (III).
5 In LEE (ED.), INTEGRATING SOCIAL MEDIA INTO BUSINESS PRACTICE, APPLICATIONS,

MANAGEMENT , AND MODELS (2014) 134; RICCARDA DÜMKE, CORPORATE

REPUTATION AND ITS IMPORTANCE FOR BUSINESS SUCCESS: A EUROPEAN
PERSPECTIVE AND ITS IMPLICATION FOR PUBLIC RELATIONS CONSULTANCIES, (2002)
26.
6 Karine Perset, Organisation for Economic Co-operation and Development, The Economic and Social

Role of Internet Intermediaries (“OECD 2010 Report”) (2010).

7 Richmond Mercurio, What makes e-commerce click?, Philstar Global,
http://www.philstar.com/business/2017/12/02/1764314/what-makes-e-commerce-click, (2 December
2017) accessed on 24 January 2018.
8 Josh Constine, “Facebook now has 2 billion monthly users… and responsibility”, Techcrunch,

https://techcrunch.com/2017/06/27/facebook-2-billion-users/, (27 June 2017), accessed on 10

September 2017.
9 Trefis Team, Twitter’s Surprising User Growth Bodes Well For 2017, Forbes,
https://www.forbes.com/sites/greatspeculations/2017/04/27/twitters-surprising-user-growth-bodes-
well-for-2017/#40ee4b022e11, (27 April 2017), accessed on 10 September 2017.
2
 While the Internet is a powerful tool for commerce,
collaboration, and connection, it also presents a considerable
challenge 10 because of its broad and worldwide reach. 11 Although it
enjoys a veil of protection under international law 12 , there is an
increasing need for proper regulation because of the higher risk it
poses to other protected rights.13

THE UNITED NATIONS FRAMEWORK

International human rights standards have traditionally been the

responsibility of States,14 but through global developments, non-State
actors such as international organizations 15 and transnational
corporations play an increasingly important role both in the municipal
and international levels.16

Because of their expansive scope of influence -- blurring

territorial borders and crossing jurisdictions, the United Nations
(“UN”) Human Rights Committee has been considering the extent of
human rights responsibilities of businesses, as well as exploring ways
for corporate actors to be held accountable for any adverse effects their
activities may have on society.17

10 Peter Malanczuk, ‘Data, Transboundary Flow, International Protection’ in Rudiger Wolfrum,

Max Planck Encyclopedia of Public International Law (2010).
11 General Comment 34 supra n2; Times Newspaper Ltd. v. UK Application Nos 3002/03 and

23676/03 (ECtHR, 6 October 2009) ¶27.

12 Id.
13 Węgrzynowski and Smolczewski v. Poland, no. 33846/07, (ECtHR, 16 July 2013) ¶98; Editorial Board

of Pravoye Delo and Shtekel v. Ukraine, Application no. 33014/05 (ECtHR, 05 May 2011) ¶52.
14 DAVID JASON KARP, RESPONSIBILITY FOR HUMAN RIGHTS: TRANSNATIONAL

CORPORATIONS IN IMPERFECT STATES, (2014) 2, MALCOLM N. SHAW,

INTERNATIONAL LAW, 6 Ed. (2008) 268, PETER MALANCZUK, AKEHURST’S
INTRODUCTION TO INTERNATIONAL LAW, 7 Ed. (1997) 209.
15 MALCOLM N. SHAW, supra n14 at 1295.
16 See generally KURT MILLS AND DAVID JASON KARP (Ed), HUMAN RIGHTS PROTECTION

IN GLOBAL POLITICS: RESPONSIBILITIES OF STATES AND NON-STATE ACTORS (2015).

17 The Corporate Responsibility to Respect Human Rights, An Interpretative Guide,

HR/PUB/12/02 (2012), Guiding Principles on Business and Human Rights, Implementing

the United Nations “Protect, Respect and Remedy” Framework, HR/PUB/11/04 (“2011
Implementing Rules”) (2011).
3
 In 2011, the UN Human Rights Council endorsed the Guiding
Principles on Business and Human Rights for Implementing the UN
‘Protect, Respect and Remedy’ Framework (“Guiding Principles”),
providing a global standard for preventing and addressing the
impacts of business activities on human rights.18

While society benefits from globalization, and we are afforded

advantages our forefathers could not even begin to imagine, the
sinister effects of a poorly-regulated digital landscape may just be
lurking behind the next pop-up.

In this digital day and age, when liberty and prosperity are so
uniquely intertwined in the Internet, how does the rule of law
safeguard both?

STATEMENT OF THE PROBLEM

As the most valued and least restricted of the preferred rights19,

one that is fundamental to any democratic society 20 , the qualitative
significance of the freedom of expression arises from the fact that it is
the indispensable condition of nearly every other freedom.21

Online communication is facilitated by parties called

intermediaries.22 As it stands, some intermediaries are deemed capable
of possessing the right to free expression - encompassing the right to

18 UN Special Rapporteur on Human Rights and Business Final Report, A/HRC/17/31, (21 March
2011) (“March 2011 Report”); Implementing Rules, supra n17.
19 Soriano v. Laguardia, Dissenting Opinion J. Carpio, G.R. No. 164785, 15 March 2010, In the Matter

of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated
September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 437.
20 Communication No. 1173/2003, Benhadj v. Algeria, Views adopted on 20 July 2007; No.628/1995,

Park v. Republic of Korea, Views adopted on 5 July 1996, MICHAEL VERPEAUX, FREEDOM
OF EXPRESSION: IN CONSTITUTIONAL AND INTERNATIONAL CASE LAW (2010) 86.
21 General Comment No 34, supra n2, See also Bowman v UK App no 24839/94 (ECtHR, 19 February

1998) ¶42; Claude-Reyes v Chile , Merits, Reparations and Costs Judgment (Inter-American
Court of Human Rights (“IACHR”), 19 September 2006) ¶85. Blo Umpar Adiong v. Commission
on Elections, G.R. No. 103956, 31 March 1992, 207 SCRA 712.
22 Electronic Frontier Foundation, 'The Manila Principles on Intermediary Liability: Best Practices

Guidelines for Limiting Intermediary Liability for Content to Promote Freedom of Expression
and Innovation' (2015), https://www.eff.org/files/2015/10/31/manila_principles_1.0.pdf,Accessed
29 October 2016.
4
impart information.23 However, current legal literature on the matter
is only categorical in terms of the treatment of active intermediaries24,
or those intermediaries that create or exercise some degree of editorial
control over the content they publish25, such as online news outlets.26
Under the status quo, they may be considered publishers 27 and are
consequently held liable for unlawful content found in their platforms,
similar to traditional publishers of print media.28

On the other hand, there is yet to be a definitive framework for

how passive intermediaries should be treated. Passive intermediaries
are online platforms which do not exercise any form of editorial
control over the content published 29 since the content is always
generated by their individual users. 30 Examples of which include
content hosting sites like YouTube,31 Vimeo and Imgur; social media

23 Autronic AG v Switzerland Application no 12726/87 (ECtHR, 22 May 1990) ¶47; General Comment
34, supra n2, ¶13; Delfi AS v Estonia Application no 64569/09 (ECtHR, 10 October 2013)¶69,
70; Cengiz v Turkey Application nos 48226/10, 14027/11 (ECtHR, 1 December 2015) ¶56;
National Association for the Advancement of Colored People v Button (1963) 371 US 415, 428–449;
First National Bank of Boston v Bellotti (1978) 435 US 765, 783; Pacific Gas & Electric v Public
Utilities Commission (1986) 475 US 1, 8; Federal Election Commission v Wisconsin Right to Life Inc.
(2007) 551 US 449, 454.
24 Delfi AS v Estonia supra n23, ¶154; Magyar Tartalomzolgáltatók Egyesülete and Index.hu Zrt v

Hungary, App No. 22947/13 (“MTE v Hungary”) (ECtHR, 2 February 2016) ¶60; see also
ANDREJ SAVIN, EU INTERNET LAW: SECOND EDITION (2017).
25 March 2011 Report supra n18; UN Human Right Council, Joint Declaration by the UN Special

Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of

the Media and the OAS Special Rapporteur on Freedom of Expression, 21 December 2005;
Principle 6, Declaration on Freedom of Communication on the Internet, Committee of
Ministers, Council of Europe (28 May 2003).
26 MTE v Hungary supra n24, ¶60-63; Seth F. Kreimer, Censorship by Proxy: The First Amendment,

Internet Intermediaries and the Problem of the Weakest Link, 155 U. Pa. L. Rev. 11 (2006).
27 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).
28 Calder v. Jones (1984) 465 US 783, Fermin v. People, G.R. No. 157643, 28 March 2008, 550 SCRA 132;

Tulfo v. People, G.R. Nos. 161032 and 161176, 16 September 2008, 565 SCRA 283, 314-315, U.S.
v. Ocampo, 18 Phil. 1 (1910).
29 Trammel and Bambauer ‘Personal Jurisdiction and the “Interwebs”’ (2015) 100 Cornell L Rev 1129;

Zippo Manufacturing Co v Zippo Dot Com, Inc. (1997) 952 F Supp 1119, 1122-23; Select Comfort
Corporation v Kittaneh (2014) 161 F Supp 3d 724 ; Energy Automation Systems, Inc v Saxton (2009)
618 F Supp 2d 807; Invisible Fence, Inc. v Fido’s Fences, Inc. (2009) 687 F Supp 2d 726.
30 Derek E. Bambauer, Exposed, 98 Minn. L. Rev. 2025, 2055 (2014); Eric Goldman, Unregulating

Online Harrassment, 87 Denv. U. L. Rev. Online (2010) 59, 60.

31 See generally REBECCA ROWELL, YOUTUBE: THE COMPANY AND ITS FOUNDERS (2011);

JEAN BURGESS AND JOSHUA GREEN, YOUTUBE: ONLINE VIDEO AND

PARTICIPATORY CULTURE (2009).
5
platforms such as Facebook, Twitter 32 and Instagram 33 , and even
search engines like Google34 and Yahoo!.35

If a user publishes content on a social networking site, and such

content infringes on a third person’s intellectual property, should the
platform be held accountable? If an advertiser buys ad space, does the
platform have a responsibility to determine the fitness of the collateral
to be published? May an intermediary privatize censorship?

This dissertation therefore seeks to answer:

QUESTIONS PRESENTED

First, does a passive intermediary have the right to the freedom

of expression?

(1) Corollary, does the presence of such right carry any

concomitant obligation to protect human rights, such that its failure
triggers liability?

(2) What is the scope of that obligation?

Second, what type of intermediary liability, if any, should be

imposed on a passive intermediary?

OBJECTIVE OF THE STUDY

Though liability issues faced by passive intermediaries are

caused by their users, they remain attractive targets for legal action
because their visibility, notoriety and financial strength are likely to be
greater than that of their clients’. 36 This is also partly because the

32 JAANI RIORDAN, THE LIABILITY OF INTERNET INTERMEDIARIES (2016) 543.

33 Id at 275.
34 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja

González, C-131/12, 13 May 2014.

35 Union des Étudiants Juifs et La Ligue Contre le Racisme et l’Antisémistisme v. Yahoo!, No. 00/05308,

Tribunal de Grande Instance de Paris, 20 November 2000.

36 I.J. LLOYD, INFORMATION TECHNOLOGY LAW, Oxford University Press (2008) 572

6
allocation of liability between intermediaries and the users who
originally put the content online can be problematic.37

This paper aims to strike a balance between the commercial

interest of intermediaries and their responsibility towards protecting
their users’ rights. This study aims to do so by identifying the proper
treatment of intermediaries in light of human rights norms and the
responsibility of businesses under the Guiding Principles.

SIGNIFICANCE OF THE STUDY

Intermediaries build a critical mass of users. They facilitate the

interaction between different actors in the cyber ecosystem, such as
users and advertisers, 38 and even between and among users
themselves. Because of the key role they play, proper regulation must
be in place for their guidance, protection and even incentive.

Allowing intermediaries to be complicit in human rights

violations not only results to moral costs, but also business costs. 39
Corporations open themselves up to reputational and operational
risks, legal liability, even loss of investor and consumer confidence.40
Because of the dynamic, continuous and lucrative nature of online
transactions, there is a pressing need to define the rights and
obligations of intermediaries.

Further, courts experience difficulties applying a specific liability

regime to intermediaries, so much so that even tribunals in Europe

37 Commission Proposal for a European Parliament and Council Directive on certain legal aspects
of electronic commerce in the internet market, COM (1998) 586 final, 18 November 1998, p. 12
38 Supra n6 at 6.
39 Susan Aaronson & Ian Higham, Re-Righting Business: John Ruggie and the Struggle to Develop

International Human Rights Standards for Transnational Firms, Geo. Wash. U., Eliott School of
Int’l Affairs (June 2011).
40 Cynthia Williams & John Conley, Is There an Emerging Fiduciary Duty to Consider Human Rights?

74 U. CIN. L. REV. 75 (2005); Jena Martin Amerson, Business and Human Rights: What’s the
Board Got to Do with It?, 2013 ILL. L. REV. (2013).
7
where the e-Commerce Directive 41 applies have issued conflicting
rulings regarding the liability of online intermediaries.42

Given the borderless nature of the Internet 43 , it is even more

critical to determine and analyze the appropriate regime to govern
intermediaries. If it be too restrictive, we run the risk of fostering a
culture of self-censorship 44 , and by extension, producing a chilling
effect on free speech. 45 If it be too permissive, we run the risk of
nurturing a culture of impunity, where irreparable harm may be done
with the expediency of a click of a button.

METHODOLOGY/RESEARCH DESIGN

A. BLACK LETTER APPROACH

The Black Letter Approach will be used to address the questions

presented. This method involves the study, examination and analysis
of legal rules and norms found in a penumbrae of sources. It aims to
collate, organize, describe and analyze relevant rules, and identify
emerging norms, if any.

For this dissertation, and consistent with this approach, the

following primary and secondary sources of law will be analyzed to
support the position that even passive intermediaries have the right to

41 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, in the Internal
Market, Official Journal L 178, 17/07/2000 P. 0001 – 0016, (“e-Commerce Directive”).
42 EU Study on the Legal Analysis of a Single Market for the Information Society, Chapter 6,

Liability of Online Intermediaries, Information Society and Media of the European

Commission, November 2009, OJ 2007/S 202 244659 of 19/10/2007.
43 Teresa Scassa and Robert J. Currie, New First Principles? Assessing the Internet’s Challenges to

Jurisdiction, 42 Geo. J. Int'l L. 1017 (2011).

44 YamanAkndeniz, MEDIA FREEDOM ON THE INTERNET: AN OSCE GUIDEBOOK,

Commissioned by the Office of the OSCE Representative on Freedom of the Media, March
2016.
45 Disini Jr. v Secretary of Justice, G.R. No. 203335, 203299, 203306, 203359, 203378, 203391, 203407,

203440, 203453, 203454, 203469, 203501, 203509, 203515, 203518 (22 April 2014); Barrett v
Rosenthal, 114 Cal. App. 4th 1379, 9 Cal. Rptr. 3d 142 (2004); Zeran v Am. Online, Inc., 129 F.3d
327 (4th Cir. 1997), MTE v Hungary, supra n24; Delfi AS v Estonia, supra n23; See joint dissent
of Judges Sajo and Tsatoria; State v Today Newspapers, 183 N.J. Super. 264, 443 A.2d 787, 1982
N.J. Super. LEXIS 707, 8 Media L. Rep. 1504 (Law Div. 1982).
8
the freedom of expression, particularly the right to publish, and
thereby incurring a corollary legal obligation to protect the same:

(1) UDHR;
(2) ICCPR;
(3) European Convention on Human Rights (“ECHR”);
(4) International Covenant on Economic, Cultural and Social
Rights (“ICESCR”);
(5) United Nations Guiding Principles on Business and Human
Rights and its predecessors;
(6) Reports of the Special Representative and other relevant UN
documents;
(7) General Comment 34 and Reports of the Special Rapporteurs;
(8) Other related human rights instruments.

Decisions rendered by municipal tribunals, including those

made by the Philippine Supreme Court, as well as decisions of
international tribunals such as but not limited to, the International
Court of Justice (“ICJ”), European Court of Human Rights (“ECtHR”),
Court of Justice of the European Union (“CJEU”) and United Nations
Human Rights Committee (“UNHRC”) relating to freedom of
expression and intermediary liability will be considered by this paper.
A survey of relevant State practice will also be made as this may yield
to possibly identifying progressive developments of international law,
or even opinio juris.

SCOPE AND LIMITATION OF THE STUDY

This paper is limited to the nature of passive intermediaries;

whether they have rights under international law, and whether or not
they may be held liable for content over which they did not exercise
any editorial control.

It will not deal with the question of how a State may acquire
jurisdiction over intermediaries operating outside its territorial
jurisdiction. Neither will this thesis deal with the question of enforcing

9
a judgment over an intermediary headquartered or operating in a
foreign territory.

REVIEW OF RELATED LITERATURE

A notable work on the issue of intermediary liability is Professor

Marcelo Thompson’s, published in the Vanderbilt Journal of
Entertainment & Technology. He introduced the ‘Normative Negligence
Approach’:

… the responsibility of Internet intermediaries should

neither be precluded nor taken to be strict. Rather, it
should reflect a commitment of applying the best
efforts reasonable - within intermediaries ' particular
economic and technological possibilities - to get the
facts and the law straight. It should be expected that
intermediaries will fail, even miserably, at times to
reach the best interpretation that can be reached
regarding the disputes they settle.

In his proposal, liability should build upon the idea of responsible

communication on matters in the sphere of public interest, and there
must be a degree of deference to editorial judgment of editors and
journalists. According to Thompson, intermediaries must
accommodate “honest mistakes” and consider:

…the seriousness of the allegation, the urgency and

public importance of the matter, the status and
reliability of the source, the pursuit and accurate
report of the plaintiff's view, the necessity and
proportionality of the publication, the public interest
in the making of the statement (rather than in its
truth).46

While tackling the same subject matter, this paper differs from
Professor Thompson’s for two reasons:

46 Grant v Torstar Corp., 3 S.C.R. 640, 2009 SCC 61, (22 December 2009).
10
 First, Thompson places intermediaries in the same category as
journalists. Concededly, there are intermediaries which produce its
own content, but his paper operates on that singular plane, completely
excluding intermediaries that neither produce content nor exercise
editorial control over them.

Second, his approach places with the intermediary the burden of

determining the legality or illegality of the content. Although more
tame, it similarly results to a collateral censorship. 47 While digital
media companies have internal protocols, that mechanism is limited
to the evaluation of whether or not a user violated the company’s
terms and conditions. It does not extend to the determination of
whether or not a violation of the freedom of speech has been
committed, or will be committed by taking down content.

A prolific writer on the relationship of business and human

rights, Professor Jena Martin Amerson’s work on the subject is
illuminating. Of particular interest is her 2011 article entitled “What’s
in a Name? Transnational Corporations and Bystanders Under International
Law” 48 which dealt with the impact of the Guiding Principles on
transnational corporations.

In essence, Amerson posits that transnational corporations may

be held liable for human rights violations even when it is a mere
bystander. She draws a parallelism with American tort law: first, that
an innocent third party may be held responsible for inaction49 , and
second, that a corporation assumes liability for products it introduces,
regardless of where that final market be located.50

47 David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary
Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 397
(2010), as cited in Samuel Sadeghi, Election Speech and Collateral Censorship at the Slightest Whiff
of Legal Trouble, 63 UCLA L. REV. 1472, 1474 (2016).
48 Jena Martin Amerson, What’s in a Name? Transnational Corporations and Bystanders Under

International Law, 85 ST. JOHN’S L. REV. 1 (2011).

49 DeShaney v Winnebago County, 489 U.S. 189 (1989).
50 In re Ephedra Products Liability Litigation, 349 B.R. 333 (Bankr. S.D.N.Y. 2006).

11
 This first theory is one of nonfeasance. It presupposes that the
relationship between the bystander and the victim creates a special
duty which can then lead to liability for the former’s inaction.51

The theory on product liability, on the other hand, expounds on

the premise that companies should bear some responsibility for the
manner in which the products are produced in the same manner that
they assume responsibility for the quality of their products wherever
they are consumed.52

Although Amerson’s work provides a thoughtful insight on

corporate responsibility, her focus is on corporations with a physical
presence in a particular territory. For example, in her proposal,
corporations cannot disavow involvement for the rape, torture and
death of villagers after it started its operations in a particular village,53
or for the death of 15,000 people from a plant explosion.54

In stark contrast, since this dissertation focuses on relationships

that occur exclusively in the digital world, physical presence and
tangible harm are not primary considerations for corporate liability to
apply.

ORGANIZATION

Having presented the general considerations of this dissertation,

the study will proceed as follows: Part II will deal with Discussions
and Analysis, presented in four sections: (A) will discuss the freedom
of expression in the Internet, (B) will discuss online intermediaries,
with a brief survey of the different regimes of intermediary liability
existing in the status quo, (C) will present a case study of decisions
made by various tribunals worldwide, and (D) will discuss the UN

51 Kim Boyer, Comment, County Welfare Development for Handling Reports of Child Abuse, 30 SAN
DIEGO L. REV. 187, 190-191 (1993).
52 Jena Martin Amerson, supra n47.
53 David Kinley & Junko Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities

for Corporations at International Law, 44 VA. J. INT’L L. 931 (2004).

54 In re Union Carbide Corp. Gas Plant Disaster at Bhopal India in December 1984, 634 F. Supp. 842

(S.D.N.Y. 1986).
12
Guiding Principles on Business and Human Rights. Finally, Part III
will conclude the study and set forth policy recommendations for the
proper treatment of passive online intermediaries.

13
 PART II
DISCUSSION AND ANALYSIS

We are facing the genuine risk that the worldwide movement

of peoples and commodities, news and information will create
a permanent flow of individuals without commitments,
industries without liabilities, news without a public
conscience, and the dissemination of information without a
sense of boundaries and discretion.55

In its Disini 56 decision, the Supreme Court of the Philippines

ruled on the constitutionality of certain provisions of Republic Act
10175 or the Cybercrime Prevention Act of 2012. Among the contested
provisions was Section 5 on ‘Other Offenses’. While the main point of
contention was whether or not a user who likes or comments on
libelous material may be considered to be aiding or abetting the main
offender, the Court briefly touched on the subject of intermediary
liability:

…when “Google procures, stores, and indexes child

pornography and facilitates the completion of
transactions involving the dissemination of child
pornography,” does this make Google and its users
ciders and abettors in the commission of child
pornography crimes? Byars highlights a feature in
American law on child pornography that the
Cybercrime law lacks – the exemption of a provider or
notably a plain user of interactive computer service
from civil liability for child pornography as follows:

No provider or user of an interactive computer

service shall be treated as the publisher or speaker
of any information provided by another
information content provider and cannot be held
civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of
material that the provider or user considers to be

55 Seyla Benhabib, as quoted in Marcelo Thompson, Beyond Gatekeeping: The Normative Responsibility
of Internet Intermediaries, 18 Vand. J. Ent. & Tech. L. 783 (2016).
56 Supra n44.

14
 obscene…whether or not such material is
constitutionally protected. (emphasis supplied).

The Supreme Court did not categorically answer the question

posed, dealing instead on possible liabilities of the content providers.
It, however, underscored the importance of having a clear legal
provision in order to define the rights and obligations of users “to
relieve users of annoying fear of possible criminal prosecution.”

(A)
FREEDOM OF EXPRESSION IN THE INTERNET

The Internet has become a key means by which individuals

exercise free speech. 57 It is a vehicle for education, interpersonal
communication, democratic participation, and access to information.58
As such, it plays a key role in mobilizing the population to call for
justice, equality, accountability and better respect for human rights.59

The UDHR, and thereafter the ICCPR, were drafted with the
foresight to include and accommodate future technological
developments60 because of the intimate relationship between speech
and the mode of its expression. 61 The medium through which
information is communicated and received is protected, in itself, by
Article 19 of the ICCPR. 62 Electronic and Internet-based modes of
57 May 2011 Report, supra n4 ¶20; UNHRC ‘Report of the Special Rapporteur on the Promotion of
the Right to Freedom of Opinion and Expression’ February 2008 Report, UN Doc
A/HRC/7/14, ¶23; UNHRC, ‘Report of the Special Rapporteur on the Promotion and
Protection of the Right of Freedom of Opinion and Expression (April 2013) ¶13.
58 CTR. FOR DEMOCRACY & TECH., REGARDLESS OF FRONTIERS: THE INTERNATIONAL

RIGHT TO FREEDOM OF EXPRESSION IN THE DIGITAL AGE (2011), available at

https://www.cdt.org/files/pdfs/CDT-Regardless_of_Frontiers_v0.5.pdf
59 May 2011 Report.

60 UNHCR, 'Report of the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression' (10 August 2011) UN Doc A/66/290.

61 Toward an International Law of the Internet by Molly Land, Volume 54, Number 2, Summer

2013, http://www.ohchr.org/Documents/Issues/Opinion/Communications/MollyLand.pdf
62 Autronic AG v Switzerland App No 12726/87 (22 May 1990); De Haes and Gijsels v Belgium App No

19983/92 (24 February 1997) ¶48. See also Feldek v Slovakia App No 29032/95 (12 July 2001);
Media Rights Agenda and Others v Nigeria, Constitutional Rights Project and Civil Liberties
Organisation v Nigeria, Comm. No. 102/93 (ACommHPR, 1998); Gaweda v Poland App No
26229/95 ( 14 March 2002).

15
expressions are therefore guaranteed the same protection of freedom
of expression as it applies offline.63

Aside from being covered by the broadly worded ‘media clause,’

the Internet is protected because it constitutes an important tool for the
exercise of the right to freedom of expression.64

Though the freedom of expression is considered a preferred

right, its exercise is not absolute. Even the ICCPR provides the
possibility of restricting free speech for reasons of overriding general
public interest or interest of others,65 thereby circumscribing the legal
ambit of individual freedom. 66 Restrictions on speech necessarily
include limitations to the medium where such right is exercised.67

(B)
ONLINE INTERMEDIARIES

Internet intermediaries are privately owned websites, servers

and routers68 which provide a free and virtual soapbox from which
one may regale the public. 69 All online communication happens
through them. Similar to offline intermediaries, like book stores and
mail carriers, it is near impossible for online intermediaries to screen
the deluge of speech reaching them.

Even before the rise of e-commerce, internet intermediaries were

already accused of defamation, copyright infringement, obscenity and
indecency issues, 70 but unlike traditional publishers, they generally

63 UN Human Rights Council Resolution A/HR/20/L.13, 29 June 2012.

64 General Comment 34 supra n2, ¶15; Times Newspaper Ltd v United Kingdom, supra n11.
65 Article 19(3), ICCPR.
66 Roza Pati, Rights and Their Limits: The Constitution for Europe in International and Comparative Legal

Perspective, 23 Berkeley J. Int’l L. 223, 242-43 (2005).

67 Supra n62.
68 David S. Ardia, supra n46.
69 John Michael Roberts, The Enigma of Free Speech: Speakers’ Corner, The Geography of Governance and

a Crisis of Rationality, 9 Soc. & Legal Stud. 271, 272 (2000).

70 J. Hughes, The Internet and the Persistence of Law, Boston College Law Review, 2003, Vol. 44, No.

2, p 383.
16
have a limited degree of knowledge about the data they transmit or
store.

Despite this, they remain attractive targets for legal claims, as

they are seen as the most effective point of control 71 over Internet-
related misconduct. 72 Netizens have a lesser degree of control over
content circulated online 73 because the speed of communication 74
allows dissemination of data in pursuit of goals that may differ from
those originally intended by the user. 75 Imposing liability on
intermediaries recognizes the commercial interests they have in
content hosting and distribution, 76 and targeting the distribution
network becomes the most strategic method of law enforcement.77

Further, the anonymous nature of the Internet 78 blurs the line

between sender and receiver.79 Coupled with the permanent nature of
online communication,80 human rights violations follows the victims
to all corners of the web.81 It lends credence to the adage, “the Internet
is forever.” By extension, any harm found online continues in
perpetuity, haunting victims wherever they may be.

71 Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries and the Problem
of the Weakest Link, 155 U. Pa. L. Rev. 11 (2006).
72 Ronald Mann and Seth Belzley, The Promise of Internet Liability, 47 William & Mary Law Review

239, 265 (2005); UNHRC, ‘Report of the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression, David Kaye’, (22 May 2015) UN Doc
A/HRC/29/32 ¶54; Delfi-AS v Estonia App No 40287/98 (ECtHR, 16 June 2015) ¶111.
73 Jannelle Ward, Reaching Citizens Online: How Youth Organizations are Evolving their Web Presence

in BRIAN LOADER AND DAN MERCEA (eds), SOCIAL MEDIA AND DEMOCRACY:
INNOVATIONS IN PARTICIPATORY POLITICS (2012).
74 Delfi AS v Estonia App No 64569/09 (16 June 2015) ¶133.
75 ANDREW CHADWICK AND PHILIP N. HOWARD, ROUTLEDGE HANDBOOK OF

INTERNET POLITICS (2010) 7

76 Delfi AS v Estonia App No 64569/09 (16 June 2015) ¶126
77 New York v Ferber (1982) 458 U.S. 759; Danielle Keats Citron and Mary Anne Franks, Criminalizing

Revenge Porn 49 Wake Forest Law Review 345 (2014).

78 Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries and the Problem

of the Weakest Link, 155 U. Pa. L. Rev. 11 (2006).

79 American Civil Liberties Union v Reno (ED Pa 1996) 929 F Supp 824, 843, 883.
80 Mary Anne Franks, Unwilling Avatars: Idealism and Discrimination in Cyberspace 20 Colum J

Gender & L 224, 245 (2011).

81 Sarah Bloom, No Vengeance for ‘Revenge Porn’ Victims: Unravelling Why This Latest Female-Centric,

Intimate-Partner Offense is Still Legal, and Why We Should Criminalize It 42 Fordham Urb LJ 233
(2014).
17
 REGIMES OF INTERMEDIARY LIABILITY

The Recommendation of the Committee of Ministers to the

Member States of the Council of Europe discusses a “differentiated
and graduated approach” to intermediaries. It requires that each actor
whose services are identified as media or as an intermediary benefit
from both the appropriate form (differentiated) and the appropriate
level (graduated) of protection.82

Different intermediaries exist in the digital world. They are ISPs,

payment systems, search engines, auction sites, social networking sites
and other platforms and application providers that offer infrastructure
necessary for online activities.83

Current literature makes a distinction between active and passive

intermediaries. The differentiation is important since each type of
intermediary carries with it a certain set of rules regarding liability or
immunity therefrom. When an intermediary does not alter the
integrity of the information contained in the transmission, then it
should properly be characterized as passive84, otherwise it is active.

States worldwide have enacted speech laws which govern the

treatment of intermediaries. Liability is usually accompanied with an
injunction to take down a particular unlawful content85, however, State
practice is not uniform.

In the United States, for example, intermediaries are held liable

only if they exercise editorial control over the contents of the website.86
82 Appendix to Recommendation CM/Rec( 2011) 7 of the Committee of Ministers to member States
on a new motion media ( 21 September 2011)¶47.
83 Mark MacCarthy, What Payment Intermediaries Are Doing About Online Liability and Why It Matters,

25 Berkeley Tech. L.J. 1037 (2010).

84 OSCE 2011 Joint Declaration on freedom of expression and the internet (1 June 2011),

http://www.osce.org/fom/78309.
85 Platform “Ärtze für das Leben” v Austria, App no 10126/82, A/139 (ECtHR, 21 June 1998), 401.
86 Section 230, Communications Decency Act (“CDA”), Title V of the Telecommunications Act of

1996, Cubby, Inc. v. CompuServe Inc supra n27, Stratton Oakmont, Inc. v. Prodigy Servs. Co., No.
31063/94, N.Y. Sup. Ct. May 24, 1995, Fed.; Trade Comm'n v. Accusearch Inc., 570 F.3d 1187,
1196 (10th Cir. 2009); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521
F.3d 1157, 1166 (9th Cir. 2008); Jones v. Dirty World Entm't Recordings, LLC, 965 F. Supp. 2d 818,
18
The Communications Defense Act (CDA) provides a safe harbor for
intermediaries,87 evolving from the system where intermediaries were
automatically held liable for unlawful content if they hold out to the
public that they control the websites’ contents. 88 Under the Safe
Harbor Model, intermediaries cannot be held liable if they are mere
“distributors”. Unless they played a significant role in the creation or
development of the content, they are found free from any liability.89

Although seemingly ideal, the shield under the CDA has been
abused to become a vacuum where Internet-based misconduct can
thrive. Take for instance the case of Barnes v Yahoo!, where the
immunity provision granted to Yahoo! as a neutral webhost made it
impossible for a victim of revenge porn to compel the removal of her
intimate photos uploaded by a former lover without her consent.90

The European Union takes a similar approach to the CDA.

Under the e-Commerce Directive, intermediaries whose role is
“merely technical, automatic and passive” are protected from liability,
save for those that play “an active role of such kind as to give knowledge
of, or control over, the data stored.”91

However, even that model has potential dire consequences. If

liability is triggered by mere notice or is made contingent on the
content’s takedown, intermediaries will have strong incentives to
overcompensate and trade-off the possibility of censoring their user’s
legitimate expression for the assurance of completely avoiding liability

823 (E.D. Ky. 2013); Alvi Armani Med., Inc. v. Hennessey, 629 F. Supp. 2d 1302, 1306-07 (S.D. Fla.
2008); Woodhull v. Meinel, 202 P.3d 126, 133 (N.M. Ct. App. 2008).
87 Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); Nemet Chevrolet, Ltd v. ConsumerAffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Chicago
Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008).
88 Stratton Oakmont, Inc. v. Prodigy supra n88 .
89 Michael L. Rustard & Thomas H. Koenig, Rebooting Cybertort Law, 80 WASH. L. REV. 335, 364

(2005), Johnson v Arden supra n89; Nemet Chevrolet, Ltd. v ConsumerAffairs.com, Inc supra n89;
Doe v MySpace, Inc., supra n89; Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v
Craigslist, Inc. supra n90.
90 Barnes v Yahoo!, Inc., (9th Cir., 2009) 570 F.3d 1096.
91 Delfi AS v. Estonia supra n23, ¶43; Case C-236/08, Google France SARL v. Louis Vuitton Malletier

SA, PP 113-14, 121 (Mar. 23, 2010).

19
altogether. 92 More often that not, intermediaries would simply take
down content upon receipt of a complaint by a user93 in due part to
their “fragile commitment to the speech that they facilitate.”94

This liberal approach taken by the US and Europe exists on one

end of the spectrum, the opposite of which is occupied by States like
Thailand95 and China96 where the presence of the illegal content on the
website ipso facto makes the intermediary liable. This flows from the
premise that intermediaries are expected to regulate content submitted
by third parties.97

This Blanket Approach, although criticized by modern democratic

States98, nevertheless continues to remain in force owing to what Joan
Barata of the Organization for Security and Co-operation in Europe
(“OSCE”)99 calls the “nationalization of human rights.” The danger in this
rigid approach lies in its repressing effect. 100 Scholars believe that
intermediaries should not be made to assess the legality of the content
themselves, but rather have the liability hinge on failure to act on

92 Rebecca Ong, Internet Intermediaries: The Liability for Defamatory Postings in China and Hong Kong,
29 COMPUTER L. & SEC. REV. 274, 281 (2013), Daithi Mac Sithigh, The Fragmentation of
Intermediary Liability in the UK, 8 J. INTELL. PROP. L. & PRAC. 521, 525-26 (2013).
93 Felix T. Wu, Collateral Censorship and the Limits of Intermediary Liability, 87 Notre Dame L. Rev. 293

(2011); See also J.M. Balkin, Free Speech and Hostile Environments, 99 Colum, L. Rev. 2295, 2296-
307 (1999).
94 Seth Kreimer at supra n26.
95 See Section 15, Computer Crime Act B.E 2550 (2007), Khemthong Tonsakulrunggruang, Study of

Intermediary Liability in Thailand: Hate Speech, https://www.law.uw.edu/media/1406/thailand-

intermediary-liability-of-isps-hate-speech.pdf (2015); Jeremy Malcolm, Intermediary Liability in
Thailand Done Right and Done Wrong, https://www.eff.org/deeplinks/2015/04/intermediary-liability-
thailand-done-right-and-done-wrong, (2015)(Accessed on: October 24, 2016)
96 Center for Democracy & Technology, Shielding the Messengers: Protecting Platforms of Expression

and Innovation, https://cdt.org/files/pdfs/CDT-Intermediary-Liability-2012.pdf (2012)

97 Article 19 Free Word Centre, Internet Intermediaries: Dilemma of Liability,
https://www.article19.org/data/files/Intermediaries_ENGLISH.pdf, (2013)
98 Id.
99 Joan Barata, NATIONAL AND INTERNATIONAL LEGAL STANDARDS, TECHNOLOGY

AND SOCIAL CONTEXTS, 10th ANNIVERSARY CONFERENCE, PRICE MEDIA LAW

CONFERENCE (2017).
100 MTE v Hungary, supra n24; See joint dissent of Judges Sajo and Tsatoria in Delfi AS v Estonia,

App No 64569/09 (ECtHR, June 2015); State v Today Newspapers, 183 N.J. Super. 264, 443 A.2d
787, 1982 N.J. Super. LEXIS 707, 8 Media L. Rep. 1504 (Law Div. 1982).
20
knowledge of content judged unlawful by an external authority. 101
Any decision made by intermediaries on the legality or illegality of
content raises concerns on the protection of freedom of expression.
Intermediaries must be neutral implementers of decisions, not
decision makers themselves.102

(C)
CASE LAW ON INTERMEDIARY LIABILITY

In June 2008, eBay was found liable by the French Civil Court of
Troyes for the sale of a counterfeited luxury bag.103 Although eBay was
not actively involved in the transaction, the court held it liable because
it found eBay’s efforts to suppress counterfeit insufficient. eBay was
ordered to pay €20,000 in damages. A month later, the Court of
Brussels had a contrary ruling. It found eBay’s efforts to be sufficient,
holding that the company could not be required to actively monitor
the auctions on its site.104

Despite eBay’s claim that it had no sifting mechanism to

effectively filter ads which infringe distribution agreements, the
Commercial Court of Paris ordered eBay to remove from its systems
all ads relating to the Louis Vuitton’s perfumes under pain of a daily
penalty worth €50,000.105

While the eBay cases concerned infringement of intellectual

property, they show the temperamental nature of assessing
intermediary liability. It is interesting to note that the eBay cases
presented were decided by European courts where the e-Commerce
Directive applies.

101 Corey Omer, Intermediary Liability for Harmful Speech: Lessons from Abroad, 28 Harv. J. Law & Tec
289 (2014).
102 Marcelo Thompson, Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries, 18

Vand. J. Ent. & Tech. L. 783 (2016).

103 Hermès International v eBay, Tribunal de grande instance de Troyes (4 June 2008) no. 06/02604.
104 Lancome Parfums et Beaute & Cie v eBay International AG, Tribunal de Commerce, Bruxelles, 31

July 2008, Revue Lamy Driot de l’Immaterial [RLDI] 2008, 41 (Belg.).

105 SA Louis Vuitton Mallatier v eBay, Inc., Tribunal de Commerce Paris, 30 June 2008, First Section

B, No. 2006077799; CL-1; Christian Dior Couture, SA v eBay Inc., Tribunal de Commerce Paris,
30 June 2008, First Section B, No. 2006077807.
21
 THE YAHOO! CASES: FRENCH INTERIM ORDER, AND AMERICAN
DECLARATORY RELIEF

Perhaps the most controversial ruling involving intermediary

liability and jurisdictional issues are the Yahoo! cases.106

Because denying the Holocaust is illegal in France, advocacy

groups UEJF and LICRA filed a case against Yahoo! and Yahoo! France
for exhibiting Nazi objects for purposes of sale.107 According to UEJF
and LICRA, Yahoo! violated the law when it made accessible to all
French Internet users the auctions-page of Yahoo.com where
thousands of Nazi objects were being offered. UEJF claimed that by
hosting anti-Semitic literature on its site, Yahoo! and Yahoo! France
promoted anti-Semitism in written form.

On May 2002, the French court issued an interim order for

Yahoo! to restrict access to the Nazi artifact auction site and to all sites
which may constitute Nazism apology or negativism. It was required
“to cease all hosting and availability in the territory (of France) from the
‘Yahoo.com’ site of messages, images and text relating to Nazi objects, relics,
insigna, emblems and flags, or which evoke Nazism”, and of “Web pages
displaying text, extracts, or quotes from ‘Mein Kampf’ and the ‘(Protocols of
Zion)’” at two specified Internet addresses. The order further required
Yahoo! France to post a warning on fr.yahoo.com that viewing the site
subjects the user to penalties. The order carried with it a penalty of
€100,000 per day of delay.

Yahoo! argued that since their services were directed towards

users in the United States, the “coercive measures” taken by France
would violate the First Amendment of the United States Constitution
which guarantees to every citizen the freedom of opinion and
expression. The order of the court, according to Yahoo!, amounted to
prior restraint on free speech, and should therefore be held
unconstitutional.

106 Union des Étudiants Juifs et La Ligue Contre le Racisme et l’Antisémistisme v. Yahoo! supra n35.
107 Article 24 bis, 29 July 1881 Act.
22
 Despite its arguments, Yahoo! voluntarily changed its policy to
comply with the order of the court. The changes made by Yahoo! were
taken by the French court as “substantial compliance” to the interim
order.

Yahoo! however filed for declaratory relief with a court in

California. 108 The main discussions of the court related to matters of
adjudicative and enforcement jurisdiction of the French tribunal which
issued the order. It did not make a definitive ruling on any First
Amendment-related concerns:

We are thus uncertain about whether, or in what form,

a First Amendment question might be presented to
us… There is some possibility that in further restricting
access to these French users, Yahoo! might have to
restrict access by American users. But this possibility is,
at this point, highly speculative. This level of harm is
not sufficient to overcome the factual uncertainty
bearing on the legal question presented and thereby to
render this suit ripe.

As to any monetary liability of Yahoo!, the court in California did

not rule on the propriety or validity of the penalty, but merely made
its suspicion known that the French court’s order threatening money
sanctions will most likely not be enforced in the jurisdiction.

DELFI AS V ESTONIA: LIABILITY FOR USER-GENERATED COMMENTS

For the first time, the ECtHR was called to rule on the issue of
intermediary liability. 109 Notwithstanding the protection of speech
under Article 10 of the ECHR110, the Grand Chamber of the ECtHR
ruled that Delfi should be held liable for user-generated comments.

108 Yahoo! Inc., v La Ligue Contre Le Racisme et l’Antisemitisme and L’Union Des Etudiants Juifs de France,
United States Court of Appeals, Ninth Circuit, No. 01-17424, 12 January 2006.
109 Delfi AS v Estonia supra n23 ¶111.
110 Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights, as amended).

23
 Delfi is one of the largest news portals in Estonia, and it
publishes up to 330 news articles a day. Delfi’s comment section is
notorious for having provocative, sometimes offensive comments
published by users who may post anonymously. 111 Delfi does not edit
the comments published by its users.

On 24 January 2006, Delfi published an article under the heading

“SLK Destroyed Planned Ice Road”. It alleged questionable business
practices by SLK, a ferry and shipping company in the area. In a matter
of two days, the post had generated 185 comments, which was
considered unusually high for Delfi’s online traffic. Twenty of the
comments contained personal threats and offensive language against
L, a member of the supervisory board of SLK.

Six weeks later, L requested Delfi to take down the 20 offensive

comments, and to pay €32,000 as compensation for non-pecuniary
damages suffered. On the same day, Delfi removed the comments but
refused the claim for damages.

According to the Grand Chamber, given Delfi’s scale, and the

notoriety attributable to the comments its posts generate, it was in a
position to assess the risks related to its activities. As a large
professionally managed commercial internet news portal which
publishes news articles of its own and invited its readers to comment
on them 112 , to a reasonable degree, the consequences of having a
comment environment would have been foreseeable to them. 113

The comments, as found by the Estonian Supreme Court and

adapted by the ECtHR, amounted to hate speech and did not enjoy any
protection under international law. Although the users themselves
could be found liable under domestic law, because their identification
would prove problematic, if not impossible, and given the financial
superiority of Delfi over their users, the ECtHR agreed that Delfi
should be made liable.

111 Id, ¶15, 117.

112 Id, ¶115.
113 Id, ¶62, 128.

24
 The ECtHR also agreed with the damages assessed by the
Estonian court of €3,200 after considering several factors: (1) the
corporate standing of Delfi as one of the largest news portal operators
in Estonia, (2) the extreme nature of the comments in question, (3)
Delfi’s technical capacity to do more because of its awareness of the
oftentimes hostile environment of its comments section, (4) the
moderate sanctions imposed against Delfi (5) which was based on
relevant and sufficient grounds.

Though no person should be made to answer for acts which he

did not commit, the court in this case, however, expanded culpability
to Delfi using an ‘economic interest test’, and a ‘control test’:

…in the comment environment, the applicant company

actively called for comments on the news items
appearing on the portal. The number of visits to the
applicant company’s portal depended on the number
of comments; the revenue earned from advertisements
published on the portal, in turn, depended on the
number of visits. Thus, the Supreme Court concluded
that the applicant company had an economic interest
in the posting of comments. In the view of the
Supreme Court, the fact that the applicant company
was not the writer of the comments did not mean that
it had no control over the comment environment.
(emphasis supplied)

Granted that Delfi was a news portal, and therefore could be

considered an active intermediary, it is important to note that the
liability attached not because of the content over which it exercised
editorial control, but over comments which were posted by its users.

If the test to determine liability is not a question of whether or

not an intermediary interfered with the content, but rather whether it
had a commercial interest and control over it, there would be an
incentive for neutral webhosts to create prior restraint as it forces

25
intermediaries to police itself and future content.114 This is a form of
collateral censorship and violates its users’ freedom of expression.115

MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT V

HUNGARY

After its bold pronouncement in the 2013 Delfi case, the ECtHR’s
2016 MTE decision was closely watched by the international
community. While Delfi involved a commercial news portal, MTE
involved a non-profit organization, Magyar Tartalomzolgáltatók
Egyesülete.

MTE is a self-regulatory body of Hungarian Internet content

providers which monitors the implementation of a professional code
of Internet content providing. Index, on the other hand, is a company
which owns a major news portal in Hungary.116

Both MTE and Index had comment sections in their portals, but
comments could only be posted by users after registration. Neither
MTE nor Index edited or moderated the comments. Any reader,
however, may notify them of any comment they wish to be removed
under a notice-and-take-down mechanism.117

On 5 February 2010, MTE published an opinion piece entitled

“Another unethical commercial conduct on the net” concerning the
allegedly unethical practices of two real estate management
websites. 118 Index picked up the article, re-publishing its full text,
along with its own opinion on the matter. Both articles generated
comments, including offensive sentiments from users.119

114 Media freedom on the internet: An OSCE Guidebook (2016); See also joint dissent of Judges Sajo
and Tsatoria in Delfi AS v Estonia (2015).
115 Media freedom on the internet: An OSCE Guidebook (2016); See also joint dissent of Judges Sajo

and Tsatoria in Delfi AS v Estonia (2015).

116 MTE v Hungary supra n24, ¶5.
117 Id, ¶7-10.
118 Id, ¶11.
119 Id , ¶13.

26
 The company operating the beleaguered websites filed a civil
action against MTE and Index for besmirching its good reputation
with the allegedly false and offensive article, and the subsequent
comments.120 Upon learning of the impending court action, both MTE
and Index removed the impugned comments immediately. They
argued that as intermediaries, they could not be held liable for the
comments generated by their users.121 The Regional Court found the
comments offensive, insulting, humiliating and beyond limits of the
freedom of expression. The opinion itself, on the other hand, was
found lawful as it had not exceeded the acceptable level of criticism.122

The parties appealed the decision before the Budapest Court of

Appeal, which upheld the decision of the lower court and ordered
MTE and Index to pay 5,000 Hungarian forints. The same ruling was
taken by the Kúria.123

The ECtHR reviewed the context of the comments and found

that they were made against the backdrop of an ongoing matter of
public interest since the article which triggered them concerned the
injurious and misleading business practice of websites. At the time
MTE published the opinion piece, numerous complaints had already
been lodged before consumer protection agencies. 124 While the court
noted that the comments were offensive, they did not fall outside the
protection of freedom of expression.125

The court further ruled that providing a comments platform for

users to exercise their freedom of expression was a journalistic activity
of a particular nature.126 MTE and Index could not be found liable for
the comments since they took measures to prevent defamatory comments
and they had take-down systems in place.127 According to the ECtHR,
the real estate management websites could not claim any commercial
120 Id, ¶12, 14, 15.
121 Id, ¶16.
122 Id,, ¶17.
123 Id, ¶18-21.
124 Id, ¶72-75.
125 Id, ¶76.
126 Id, ¶79.
127 Id, ¶8, 81, 91.

27
reputational damage because the opinion piece originally published
by MTE was about a juridical person. As such, it does not suffer
repercussions on one’s dignity which would have been suffered had
the article been about a natural person.128

The court made a nuanced interpretation of intermediary

liability in MTE. Contemporaneity with legitimate public concerns,
context, the object of the expression, as well as the nature of the speech
were of particular importance.

Taken with the doctrinal pronouncements in Delfi, it would

appear that while there may be several factors that courts may use as
a yardstick to determine the propriety of imposing liability, ultimately
it is a question of accountability. Stated differently, when
intermediaries provide a particular service, they must take pre-
emptive measures to ensure that no rights are violated. They may not
exercise rights without expecting to comply with concomitant
obligations.

This analysis finds further support under the UN Guiding

Principles.

(D)
UNITED NATIONS FRAMEWORK ON BUSINESS AND HUMAN RIGHTS

The development, as well as the application of technology,

should be compatible with respect for individual rights.129 There is a
struggle in determining the role corporations play in the international
legal framework with respect to human rights violations. 130 This is
because the international community is still in the early stages of
adapting the human rights regime in providing for a more effective

128 Id, ¶84.

129 ROGER BROWNSWORD, RIGHTS, REGULATION AND THE TECHNOLOGICAL
REVOLUTION (2008) 24.
130 Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J.

443 (2001).
28
and responsive approach to protect individuals against corporate-
related human rights violations.131

The Human Rights Council recognizes that transnational

corporations and related business enterprises have a part to fill in the
exercise of human rights132 through investment, employment creation
and stimulation of economic growth. 133 Because of their capacity to
foster economic development and technological wealth, they are also
capable of causing adverse impacts on human rights.134

Finding a regime of liability to hold corporations accountable

under international law is challenging for many reasons.135 For one,
many human rights violations happen in government systems that are
either weak or non-functioning. Attempts to hold corporations liable
become largely unworkable.136 There is also weak national legislation
on the matter of corporate responsibility, rendering ineffective any
mitigation efforts against the adverse effects of globalization.137

A transnational approach often fails due to jurisdictional

issues138, as reflected in the Yahoo! cases.139 The rise of transnational

131 Special Representative of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises, Protect, Respect and Remedy: A Framework for
Business and Human Rights, P1, Human Rights Council, UN Doc A/HRC/8/5 (“April 2008
Report”) (7 April 2008).
132 United Nations Economic and Social Council, ‘Report of the United Nations High

Commissioner on Human Rights on the responsibilities of transnational corporations and

related business enterprises with regard to human rights, UN Doc E/CN.4/2005/91, 15
February 2005.
133 Human Rights Resolution 1005/69, ‘Human rights and transnational corporations and other

business enterprises’, UN Doc E/CN.4/2005/L.10/Add.17, 20 April 2005.

134 UN General Assembly, Draft Resolution of Bolivia, Cuba, Ecuador, South Africa and Venezuela,

UN Doc A/HRC/26/L.22/Rev.1, 24 June 2014.

135 Jena Martin Amerson, “The End of the Beginning?”: A Comprehensive Look at the U.N.’s Business

and Human Rights Agenda from a Bystander Perspective, 17 Fordham J. Corp. & Fin. L. 871 (2012).
136 Id; Human Rights Council Resolution 8/7, Mandate of the Special Representative of the

Secretary-General on the issue of human rights and transnational corporation and other
business enterprises, A/HRC/RES.8/7, 18 June 2008.
137 UN General Assembly, Draft Resolution of Andorra, Argentina, Australia, Bulgaria, Colombia,

France, Georgia, Ghana, Greece, Guatemala, Iceland, India, Lebanon, Liechtenstein, Mexico,
New Zealand, Norway, Russian Federation, Serbia, the former Yugoslav Republic of
Macedonia, and Turkey, UN Doc A/HRC/26/L.1, 23 June 2014.
138 April 2008 Report supra n126.
139 See discussion in Part D.1.

29
corporations that are subject to the laws of many jurisdictions has
created a governance gap that international law has not yet filled.140
Relatedly, companies often have peculiar legal corporate
infrastructures. Their capacity to limit liabilities through setting up
subsidiaries make it difficult to prosecute.141

Ironically, another reason attempts to hold corporations liable at

an international level is thwarted by the framework of international
human rights law itself, since the accountability mechanism was
crafted by, and apply primarily to States.142

THE PROTECT, RESPECT REMEDY FRAMEWORK

In 2000, the UN Global Compact was launched.143 In essence, it

encourages businesses to honor the Ten Principles surrounding human
rights issues. Then Secretary-General Kofi Annan challenged the
international community, particularly the business sector 144 , to take
more proactive steps to ensure human rights abuses within its sphere
of influence were being addressed.145 The initiative was criticized as it
signaled a seismic shift from the previous stance of the UN against
transnational corporations.146

A staunch supporter 147 , Dr. John Ruggie was appointed as

Special Representative of the UN Secretary-General on Business and

140 Supra n133.

141 Jena Martin Amerson, supra n130.
142 Jena Martin Amerson, supra n47.
143 Jena Martin Amerson, supra n136; See generally UN Global Impact,
https://www.unglobalcompact.org.
144 UN Secretary-General Kofi Annan’s Address to the World Economic Forum in Davos (1

February 1999), http:www.un.org/News/0ssg/sg/stories/statements_search_full.asp?statD=22.

145 Callie Kramer, Kofi Annan and the United Nations win the 2001 Nobel Peace Prize, 18 N.Y.L. SCH. J.

HUM. RTS. 475 (2002).

146 Editorial, Taming Globalization, WASH. POST, 7 August 2000, at A20; Alan Cowell, Annan Fears

Backlash over Global Crisis, N.Y. TIMES, 1 February 1999, at A14.

147 Robert A. Senser, Big Business and the UN: Towards New Framework for Corporate Responsibility,

A.M. CATH. WKLY., 1 December 2008.

30
Human Rights148 after the UN Commission on Human Rights adopted
a resolution asking Annan to create the position.149

On 7 April 2008, Dr. Ruggie submitted his second official report

entitled “Protect, Respect and Remedy, a Framework for Business and
Human Rights150” which was approved and unanimously endorsed by
the United Nations on 18 June 2008.151 By 2011, the UN Human Rights
Council unanimously adopted the Guiding Principles implementing
the United Nations ‘Protect, Respect, Remedy’ Framework.152

While the Guiding Principles partake the nature of soft law, and
is therefore non-binding, 153 it evinces a progressive development of
international law.

A consensus in the UNGA either reflect the emergence of a

customary norm or generate new ones.154 The ICJ has taken the same
tenor in its Advisory Opinion on The Legality of the Threat or Use of Nuclear
Weapons. 155 It has even categorically cited UNGA resolutions in its
judgment in Nicaragua,156 Western Sahara157 and Namibia.158

148 Press Release, UN Secretary-General, Annan Appoints Ruggie Special Representative on Rights,
Corporations, Businesses, UN NEWS CENTRE (29 July 2005), available at
http:www.un.org/apps/news/stoiy.asp?NewsID=1521&Cr=human&Crl=rights.
149 Commission on Human Rights, Hum. Rts. Res. 2005/69: Human Rights and Transnational

Corporations and Other Business Enterprises, UN Doc. E/CN.4/RES/2005/69 (29 July 2005).
150 Special Representative of the Secretary-General on the Issue of Human Rights and Transnational

Corporations and Other Business Enterprises, Protect, Respect and Remedy: A Framework for
Business and Human Rights, Human Rights Council, UN Doc A/HRC/8/5 (7 April 2008).
151 Human Rights Council Res. 8/7, Mandate of the Special Representative of the Secretary-General

on the Issue of Human Rights and Transnational Corporations and Other Business
Enterprises, Human Rights Council, UN Doc A/HRC/RES/8/7 (18 June 2018).
152 Press Release, Human Rights Council, New Guiding Principles on Business and Human Rights

Endorsed by the UN Human Rights Council, United Nations Human Rights: Office of the
High Commissioner for Human Rights,
http://www.ohcr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11164&LangID=E.
153 supra n129.
154 See Affidavits of International Law Experts Myres S. McDougal, Richard B. Lillich and Richard

A. Falk in Filartiga v. Pena-Irala, No. 79-C-917 (E.D.N.Y. 1979).

155 Advisory Opinion Concerning the Legality of the Threat or Use of Nuclear Weapons (Request for

Advisory Opinion by the General Assembly of the United Nations), ICJ, 8 July 1996.
156 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United

States of America); Merits, ICJ, 27 June 1986.

157 Western Sahara Advisory Opinion, International Court of Justice, 16 October 1975.
158 ADEMOLA ABASS, COMPLETE INTERNATIONAL LAW 62 (2012).
31
 In the Nuclear Weapons Advisory Opinion, the Court observed that:

General Assembly Resolutions, even if they are not

binding may sometimes have normative value. They
can, in certain circumstances, provide evidence
important for establishing the existence of a rule of law
or the emergence of an opinio juris.159

Under the premise that States adhere to the principles it

declares,160 and considering the nature of the UNGA as an aggrupation
of all UN member states, UNGA resolutions are deemed to carry an
inherent authority as normative standards.161

Mutatis mutandis, the resolutions of the Human Rights Council

should be given great weight as it is the byproduct of the UNGA, and
its mandate as the chief human rights body of the UN is the promotion
of protection of human rights.162

The Guiding Principles’ normative contribution does not

produce new legal obligations, but merely expounds on existing
standards and sound business practices.

Principle 11 of the Guiding Principles states that:

Business enterprises should respect human rights. This

means that they should avoid infringing on the human
rights of others and should address adverse human
rights impacts with which they are involved.

According to the Commentary 163 to the principle, businesses

have a responsibility to respect human rights, irrespective of the State’s
abilities or willingness to fulfil their own human rights obligations.

159 Advisory Opinion Concerning the Legality of the Threat or Use of Nuclear Weapons (Request for
Advisory Opinion by the General Assembly of the United Nations), ICJ, 8 July 1996, ¶70.
160 ADEMOLA ABASS, COMPLETE INTERNATIONAL LAW 62 (2012).
161 Id.
162 UNGA Resolution 60/251; A/60/L/48, 15 March 2006.
163 Supra n17 at 11.

32
 Corporate responsibility to promote and protect human rights is
a universal standard that is expected for all business undertakings.
That responsibility should not be based on any State policy, and must
be pursued by corporation independent of a State’s compliance with
its international obligations.

Although corporate acts could potentially affect the entire

spectrum of internationally recognized human rights, and hence
corporate actors must seek to protect all those rights, particular
attention must be made as regards those rights at greater risk by the
very nature of industry.

For intermediaries, no right is greater magnified than that of the

freedom of expression. Thus, intermediaries must seek to protect that
freedom, independent of the State’s inability or willingness to do so.
While they operate within the State, they are not organs of the State,
and in no circumstance may intermediaries take on censorship on the
State’s behalf.

There is no silver bullet solution to address the multi-faceted

challenges of reconciling business interests and human rights,
particularly in a very fluid online environment, operational and
cultural changes are necessary.

33
 PART III
CONCLUSION AND RECOMMENDATIONS

The subject of intermediary liability will only get more complex

with the continued evolution of the Internet. The variety and
significance of so much online activity, and its impacts on pressing
domestic issues such as crime, national security, economy and
individual liberty, have necessarily compelled States to increase
engagement with matters outside their traditional spheres of legal
authority. Put simply, because of the nature of the Internet, States are
faced with the need to regulate conduct in contexts where the
repercussions may cause a chilling effect to the freedom of speech
worldwide.

Just a few months ago, as of this writing, the Supreme Court of

Canada issued a worldwide injunction against Google164, ordering the
passive intermediary to de-list a particular website worldwide.
Despite Google’s argument that such a wide-reaching order may
trample on the rights of other third parties to receive information, the
Court upheld the decision of the Supreme Court of British Columbia,
reasoning that anything less than a global injunction would render the
order ineffective.

With the different rulings made by courts around the world on

the proper regime of liability for intermediaries, there appears to be no
difference regarding the rights and obligations of both active and
passive intermediaries. Both have rights to publish, and impart
information, and both have obligations to protect the freedom of

164 Google Inc. v Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc., 2017 SCC 34, 28 June
2017.
34
expression. They foster human rights165 and to some extent, have the
ability to prevent harms.166

While domestic frameworks, such as the e-Commerce Directive,

limit liability to active intermediaries, the contrary rulings in the eBay
cases show that all intermediaries are expected to, to a certain degree,
curate the content it publishes, or at the very least, install safety
mechanisms so their infrastructures are not abused in order to violate
individual liberties.

As the new media, intermediaries have the ultimate

responsibility of imparting information and ideas on matters of public
interest and concern.167 They must be made available for individuals
to be able to comment on public issues without censorship.168 No State
should use or force intermediaries to undertake censorship on its
behalf.169

An internet intermediary risks violating its users’ right to

freedom of expression whenever it is required to take down, and thus
censor, its users’ content. 170 Fear of future liability may lead
intermediaries to err on the side of caution and take down materials
which may be perfectly legitimate and lawful 171 resulting to self-
censorship. 172 For this reason, a hybrid of the Safe Harbor approach
seems to be the most prudent method of imposing liability even on

165 Ahmet Yildirim v Turkey, no, 3111/10, ¶48, ECtHR 2012, Times Newspaper Ltd. (nos. 1 and 2) v the
United Kingdom, supra n11; UN Special Rapporteur on Freedom of Opinion and Expression,
OSCE Representative of Freedom of the Media, OAS Special Rapporteur on Freedom of
Expression and ACHPR Special Rapporteur on Freedom of Expression and Access to
Information Joint Declaration on Freedom of Expression and the Internet, 1 June 2011.
166 Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability

for Defamation, 14 Harv. J. Law & Tec 569, (2001).

167 Observer and Guardian v United Kingdom App np 13585/88 (EctHR, 26 November 1991), Jersild v

Denmark App no 15890/89 (ECtHR, 22 August 1994).

168 UN Doc CCPR/C/21/Rev1/Add7; Charter of Fundamental Rights of the EU (1 December 2009)

20 2012/C 326/02 art 11.

169 Supra n60 at 47.

170 Supra, n60.

171 A. 19 2013 cl 2013 report of the UN Special Rapporteur on the right to freedom of expression, op

cit., para. 42; Response to EU consultation on the e-Commerce Directive.

172 Supra n43.

35
passive intermediaries. Intermediaries must be absolved of any
liability if it had provided for safeguards in the form of disclaimers,
and take-down mechanisms consistent with the standards laid down
in MTE.

Intermediaries should not be made to assess the lawfulness of

content, for that is a judicial question best resolved by a court of
competent jurisdiction. Passive intermediaries should remain neutral
platforms in this respect. Only upon refusal to comply with a valid
order of the courts should they be found liable.

36
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Representative of Freedom of the Media, OAS Special Rapporteur on
Freedom of Expression and ACHPR Special Rapporteur on Freedom of
Expression and Access to Information, Joint Declaration on Freedom of
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11. UN Special Rapporteur on Human Rights and Business Final Report,
A/HRC/17/31 (21 March 2011)
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protection of the right to freedom of opinion and expression’, UN Doc
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to Freedom of Opinion and Expression’, UN Doc A/HRC/7/14
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of Freedom of Opinion and Expression (April 2013)

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 16. UNHRC, ‘Report of the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression, David
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INTERNATIONAL DOCUMENTS
1. Affidavits of International Law Experts Myres S. McDougal, Richard B.
Lillich and Richard A. Falk in Filartiga v. Pena-Irala, No. 79-C-917
(E.D.N.Y. 1979)
2. African Commission on Human and People’s Rights, Declaration of
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https://www.achpr.org/mechanisms/freedom-of-expression/Declaration of
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3. Appendix to Recommendation CM/Rec( 2011) 7 of the Committee of
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and Transnational Corporations and Other Business Enterprises, UN
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on certain legal aspects of electronic commerce in the internet market,
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6. CTR. FOR DEMOCRACY & TECH., REGARDLESS OF FRONTIERS:
THE INTERNATIONAL RIGHT TO FREEDOM OF EXPRESSION IN
THE DIGITAL AGE (2011), available at https://www.cdt.org/files/pdfs/CDT-
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Liability: Best Practices Guidelines for Limiting Intermediary Liability for
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 Business and Human Rights, Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework, HR/PUB/11/04
11. Yaman Akndeniz, Media Freedom on the Internet: An OSCE Guidebook,
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MISCELLANEOUS
1. Editorial, Taming Globalization, WASH. POST, 7 August 2000, at A20; Alan
Cowell, Annan Fears Backlash over Global Crisis, N.Y. TIMES, 1 February
1999, at A14.
2. Joan Barata, NATIONAL AND INTERNATIONAL LEGAL
STANDARDS, TECHNOLOGY AND SOCIAL CONTEXTS, 10th
Anniversary Conference, Price Media Law Conference (2017)
3. Joint Dissent of Judges Sajo and Tsatoria in Delfi AS v Estonia (2015)
4. Josh Constine, “Facebook now has 2 billion monthly users… and
responsibility”, Techcrunch, https://techcrunch.com/2017/06/27/facebook-2-
billion-users/, (27 June 2017), accessed on 10 September 2017
5. Karine Perset, Organisation for Economic Co-operation and
Development, The Economic and Social Role of Internet Intermediaries
6. Lorenzo Kyle Subido, PH E-commerce Revenue to Hit $1.2 B in 2017,
Entrepreneur Philippines, http://www.entrepreneur.com.ph/news-and-
events/ph-e-commerce-revenue-to-hit-1-2-b-in-2017-a1672-20170202, (2
February 2017) accessed on 10 September 2017
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8. Mohammed Seid Ali, A Critical Assessment of Freedom of Expression in
Democratic Politics (2015) 11 (17) European Scientific Journal,
https://eujournal.org/index.php/esj/article/viewFile/5794/5609
9. OSCE 2011 Joint Declaration on freedom of expression and the internet (1
June 2011), http://www.osce.org/fom/78309
10. Press Release, Human Rights Council, New Guiding Principles on
Business and Human Rights Endorsed by the UN Human Rights Council,
United Nations Human Rights: Office of the High Commissioner for
Human Rights,
http://www.ohcr.org/en/NewsEvents/Pages/DisplayNews.aspx?Ne
wsID=11164&LangID=E.
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Representative on Rights, Corporations, Businesses, UN NEWS CENTRE
(29 July 2005), available at

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 http:www.un.org/apps/news/stoiy.asp?NewsID=1521&Cr=human&C
rl=rights.
12. The Council of the European Union, EU Human Rights Guidelines on
Freedom of Expression Online and Offline (2014)
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n_freedom_of_expression_online_and_offline_en_pdf
13. Toward an International Law of the Internet by Molly Land, Volume 54,
Number 2, Summer 2013,
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14. Trefis Team, Twitter’s Surprising User Growth Bodes Well for 2017,
Forbes, https://www.forbes.com/sites/greatspeculations/2017/04/27/twitters-
surprising-user-growth-bodes-well-for-2017/#40ee4b022e11, (27 April 2017)

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