on intermediary liability

How the TPP Perpetuates the Mistakes of the DMCA

The language in the Trans-Pacific Partnership (TPP) on Internet Service Provider (ISP) liability—which governs the legal liability of Internet intermediaries and platforms for communications of their users—resides in an annex in the trade agreement's Intellectual Property chapter and was one of the most contentious parts of its copyright enforcement rules. This is because the United States was pushing to export a version of the liability regime that exists under its Digital Millennium Copyright Act (DMCA), which has been notoriously problematicin facilitating the censorship of online content through bogus copyright claims.

Other countries, that had learned some lessons from the DMCA in developing improved intermediary liability systems of their own, quite rightly sought to preserve their systems. Chile, for example, had a system that required a court order before a user's content was forcibly taken off the Internet. In Japan, although a court order was not required, an independent body containing representatives of both rights-holders and ISPs would review claims for removal of material before allowing them. And Canada had recently updated a system of “notice and notice” that would notify users of claims that their content was infringing, but would not automatically take that content offline.

In the end, the fact that these countries was able to preserve its existing system was one of the qualified wins that we achieved in the final TPP text. But the win came at a cost: the text is crafted in such a way that no other countries, besides Canada and Chile, are entitled to benefit from systems that preserve user content online until a court orders its removal. For new signatories to the TPP, they can go no further than Japan does in protecting their users' freedom of expression against copyright takedown requests.

The Manila Principles on Intermediary Liability were developed by EFF and partners from around the world and launched this May. They establish a baseline standard for intermediary liability rules that balance takedown requests with users' freedom of expression rights. So we can use the Manila Principles to rate how the TPP's ISP liability chapter should have looked. They also show how far short the TPP falls, particularly for those majority of countries who do not enjoy the grandfathered rules enjoyed by Canada and Chile.

Here are summaries of the essential points from the Manila Principles and how they are reflected (or not) in the TPP:

  1. Intermediaries should be shielded from liability for third-party content: The TPP does satisfy the first and most fundamental criterion of the Manila Principles by requiring Internet intermediaries to be shielded from liability for acts such as routing, caching, storage, or linking to third party-content using their networks or systems. The TPP also explicitly states that intermediaries should not have a proactive duty to monitor what users do online.
  2. Content must not be required to be restricted without an order by a judicial authority: The TPP unambiguously fails this criterion. Apart from Canada and Chile, every other TPP country (and all future TPP signatories) are required to provide a mechanism for ISPs to restrict user content without a court order. All that countries can do to mitigate the harsh impact of this provision is to follow the Japanese model, whereby a multi-stakeholder body vets takedown requests before they are carried into effect by ISPs—but such a body is no substitute for a court.
  3. Requests for restrictions of content must be clear, be unambiguous, and follow due process: The TPP does not have much to say about the format or content of requests for the restriction of content. Even in comparison to the DMCA, it is not prescriptive about the format of a takedown notice; not even requiring the sender depose to a good faith belief that the material identified in the notice has been used unlawfully. This may lead to takedown notices being sent with even more impunity in other countries than already occurs in the United States. Against this, the TPP does at least, in compliance with sub-point (g) of this criterion of the Manila Principles, specify that penalties should be available against those who request takedowns in bad faith.
  4. Laws and content restriction orders and practices must comply with the tests of necessity and proportionality: The TPP does not require intermediaries to limit the removal of content by using the least restrictive technical method, or by confining it to the minimum requiredgeographical and temporal extent. Given that intermediaries are insulated from liability to their users when they remove material in good faith, the outcome could be the restriction of content beyond what is strictly necessary or proportionate.
  5. Laws and content restriction policies and practices must respect due process: The TPP does require users to be notified when their content is restricted in response to a takedown notice, but does not require them to be given an opportunity to be heard prior to that content restriction, or require them to be provided with a means of appeal. As far as the TPP goes is to require that where content is restricted by takedown notice, then if there is a counter-notification process in place, the intermediary who receives a counter-notice from a user must then reinstate the content in question. However, since a counter-notification process is not mandatory, it is possible for countries to implement the TPP in a way that provides no avenue for the restoration of wrongly-removed content at all.
  6. Transparency and accountability must be built into laws and content restriction policies and practices: The TPP fails to address issues of transparency and accountability, such as transparency reporting. In one respect, it even works against these values. One of the sub-points of this criterion is that governments must not use extra-judicial measures to restrict content, such as the promotion or enforce so-called "voluntary" practices for the removal of content. But the TPP does promote such practices by calling for “legal incentives” for ISPs to cooperate with copyright owners, or take other action to deter copyright infringement.

All in all, the TPP's rates poorly against the Manila Principles on most of the essential criteria other than the first; although it does score a few points against some of the supporting criteria (such as clarifying that no proactive monitoring is required, penalizing wrongful takedown requests, and requiring the reinstatement of content when a counter-notification is received).

Where the TPP most seriously falls down is in the reliance on intermediaries to determine whether content is unlawful and should be taken down. This is not a decision that we should rely on intermediaries to make, since most of them are private, profit-maximizing entities, that will be inclined to over-remove content simply in order to avoid the time and cost of arguing about it. A better system is one such as Canada's, which places the responsibility of assessing rightsholders' claims initially back on the user, and ultimately on a judge.

By ruling out any other country's access to a balanced intermediary liability system such as Canada's, the TPP fails to adequately protect rights to freedom of expression and is likely only to perpetuate the unintended consequences that users have suffered under more than 15 years under the broken DMCA.