مهندسی فناوری اطلاعات و ارتباطات ICT

The issue of the legal responsibility of intermediaries has a long history in economics and law (Lichtman & Posner, 2006), but its relevance to information and communication policy is not as well explored. Theories of freedom of expression are typically based on the simple paradigm of a speaker and a listener. The suppression of freedom of expression is conceived as interference with a speaker’s right to express a viewpoint, or as interference with a listener’s right to seek out and receive information. Internet communications, however, connect speakers and listeners through a long chain of intermediary services. This includes – the device and its operating system; – local and backbone Internet access providers; – domain name registrars, registries and nameservers; – hosting services, content providers and content distribution networks; – financial intermediaries; and – web-based platforms such as search engines and social networking sites.

Though some are more concentrated than others, there are usually multiple suppliers in every segment of this chain, forming a complex, often market-driven system which it is now fashionable to call an “ecosystem” (Fig. 1). The concept of freedom of expression needs to be attuned to this richly intermediated environment (Ardia, 2010; Goldman, 2004–۲۰۰۵). Specific speakers and listeners may not be directly accessible to authorities or litigants, or pursuing them individually may seem prohibitively costly. Thus, there is a temptation to seek out and leverage intermediaries that can affect the targeted communication. Kreimer (2006) provides an excellent legal and normative analysis of how intermediaries can be employed to disrupt or suppress expression indirectly. Noting that speakers and listeners can be affected through an intermediary, Kreimer formulated the idea of the “weakest link,” the part of the chain of communication intermediaries that is most vulnerable to disruption. The disrupter could be a repressive government, a law enforcement agency or a clever lawyer acting on behalf of a private litigant. Finding the weak link reduces transaction costs; it may provider a closer target, a more visible, politically vulnerable target or a financially fatter target.

To some extent, policy makers in the US have understood the important relationship between freedom of expression and intermediary responsibility. A number of policy instruments in the early years of the Internet’s development immunized intermediaries from liability for the actions of their users.1 In the United States, the strongest form of protection came from Section 230 of the Communications Decency Act of 1996 (CDA) (1996). Section 230 immunizes interactive online services (OSPs) from specific types of legal liability stemming from content created by others. The protection includes news websites, blogs, email forums, and user-generated content sites such as Facebook and YouTube. It shields OSPs from defamation, privacy, negligence and other tort claims associated with publication (but not intellectual property claims).2 It is important to note that Section 230 had two distinct goals, which may seem to be at odds with each other. It was intended both to immunize OSPs who did nothing to restrict or censor their users’ communications, and to immunize OSPs who took some effort to discourage or restrict online pornography and other forms of undesirable content. Intermediaries who did nothing were immunized in order to promote freedom of expression and diversity online; intermediaries who were more active in managing usergenerated content were immunized in order to enhance their ability to delete or otherwise monitor ‘bad’ content without being classified as publishers and thus losing their immunity from liability for the content they did not restrict.3