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This post is part of our \u2018Shielding the Messengers\u2019 series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today\u2013a platform where diverse content and free expression thrive\u2013would not exist.<\/em> Last week, I had the honor of speaking on a panel at the Foreign Correspondents\u2019 Club of Thailand in Bangkok on an issue of grave importance to global internet freedom and the internet economy: the issue of intermediary liability.<\/p>\n Intermediary liability poses a global threat<\/a> to online free expression.\u00a0 We\u2019ve seen it in Italy<\/a>, where Google executives were criminally convicted of privacy violations based on a user\u2019s uploaded video.\u00a0 We\u2019ve seen it in India<\/a>, where prosecutors have essentially put the Internet on trial by criminally charging major internet companies like Facebook for not censoring allegedly blasphemous speech posted by their users.\u00a0 And we\u2019ve seen it in Thailand<\/a>, where Ms. Chiranuch<\/span> Premchaiporn<\/span>, director of the popular online newspaper Prachatai<\/span><\/a>, is facing the possibility of decades in prison based on comments posted by Prachatai\u2019s<\/span> users that have been deemed insulting to the King of Thailand. Prachatai.com Director Chiranuch (“Jiew”) Premchaiporn and CDT Free Expression Director Kevin Bankston meet at the Erawan Tea Room in Bangkok prior to panel discussion on intermediary liability<\/p>\n <\/p>\n <\/center>Ms. Premchaiporn<\/span>, also known by the nickname “Jiew<\/span>“, is currently waiting<\/a> for the verdict in her case to be announced on April 30th<\/span>.\u00a0 Meanwhile, the Thai Ministry of Information and Communication Technology (MICT<\/span>) is drafting potential revisions to the primary law under which Jiew<\/span> has been charged, Thailand\u2019s Computer Crime Act (CCA<\/span>)<\/a>, and as explained in CDT\u2019s new analysis of draft amendments to the CCA<\/span><\/a> that we obtained in December, those revisions threaten to increase the already substantial legal risks faced by internet users and intermediaries alike.<\/p>\n With the issue of intermediary liability currently front and center in Thailand, we agreed with Google\u2019s policy team in Asia that it would be a good time to put together a local event focused on the issue.\u00a0 Since the issue of intermediary liability is so often discussed as a threat to free expression, we thought this would be a good opportunity to focus on the other major threat posed by intermediary liability, as laid out in CDT\u2019s 2010 paper<\/a> on the subject: the impact on the internet economy. At the Erawan<\/span> Shrine in downtown Bangkok, a block away from the Foreign Correspondents\u2019 Club of Thailand, the Hindu creation god Brahma sits in peaceful contrast with the hi-tech hustle and bustle of the modern city.<\/p>\n <\/p>\n <\/center>So, last week, I flew halfway across the world and 11 hours into the future to Bangkok, Thailand\u2019s \u201ccity of angels\u201d, where I had the honor of meeting Jiew<\/span> for tea before Thursday night\u2019s panel discussion at the Foreign Correspondents\u2019 Club of Thailand<\/a>.\u00a0 That panel, skillfully moderated by local American journalist Newley<\/span> Purnell<\/span><\/a>, led off with my introduction to the issue of intermediary liability with a focus on its economic impact.\u00a0 I was followed by Dr. Pirongrong<\/span> Ramasoota<\/span><\/a> of\u00a0 Chulalongkorn<\/span> University, who provided in-depth background on the state of the law in Thailand (this essay of hers on Internet Politics in Thailand after the 2006 Coup<\/a> is well worth reading).\u00a0 Next was Mr. Wanchat<\/span> Bhadungrat<\/span>, founder of the popular Thai discussion board Pantip.com<\/a>, to discuss the legal uncertainty and challenges faced by user-generated content platforms based in Thailand, with Google\u2019s head of policy for Southeast Asia, Ann Lavin<\/span>, discussing how the issue of intermediary liability impacts global businesses like Google.<\/p>\n The entirety of my fifteen-minute opening presentation is reprinted below.\u00a0 Thanks again to my co-panelists and to the Foreign Correspondents\u2019 Club of Thailand for allowing me to visit Bangkok and deliver CDT\u2019s perspective on this critical global issue, and thanks to Jiew<\/span> for taking the time to meet with me.\u00a0 Her unflagging grace and courage under such trying circumstances is a continuing inspiration.\u00a0 We at CDT stand with her as she awaits the verdict in her case, which will have grave implications not only for her life but also for the continued vibrancy of free expression and the Internet economy in Thailand.<\/p>\n <\/p>\n <\/center>Good evening and thank you for coming tonight, and for allowing me to speak with you. My name is Kevin Bankston<\/span>, and I have been privileged to spend my entire career working on issues of Internet policy at esteemed civil society organizations in the United States, first at the American Civil Liberties Union or \u201cACLU\u201d in New York City, then as a senior attorney at the Electronic Frontier Foundation or \u201cEFF\u201d<\/span> in San Francisco, and now as the Director of the Free Expression Project at the Center for Democracy & Technology or \u201cCDT\u201d in Washington, DC.<\/p>\n I am honored that I was invited to be here in Bangkok tonight, in the company of such esteemed experts, to discuss the important issue of intermediary liability and the role that it plays in the Internet economy.<\/p>\n The idea that Internet intermediaries deserve protection against liability when their users break the law may seem like a new idea, because it deals with new technology.\u00a0 However, this idea is based on a simple and long-standing principle, a principle that is literally thousands of years old both in the East and in the West.\u00a0 In the West, we express this principle as a piece of advice: \u201cDon\u2019t shoot the messenger.\u201d\u00a0 When we say that, we are suggesting that the person who carries a message should not be punished simply because the recipient finds the message displeasing.<\/p>\n There are at least two good reasons to take this advice: first, shooting the messenger is fundamentally unfair; the messenger did not create the message, he simply did his job by carrying it.\u00a0 Second, when you punish the messenger, you threaten your own ability to receive important information.<\/p>\n We see this lesson illustrated both in ancient Western and Eastern history.\u00a0 As described by the great Roman historian Plutarch<\/span>, there once was an ancient Armenian emperor, Tigranes<\/span> the Great, who beheaded the messenger that informed him that the Romans were invading his kingdom.\u00a0 After that, no man dared to bring Tigranes<\/span> any other message that might displease him, and without any information at all, he remained ignorant of the war that raged around him.<\/p>\n The ancient Chinese recognized this same risk: that punishing messengers would ultimately prevent the receipt of important communications.\u00a0 That is why, over two thousand years ago during the Warring States period, it was Chinese custom\u2014driven by honor, virtue, and common sense\u2014that after receiving a message from one\u2019s enemy, the enemy\u2019s messenger would be allowed to leave unharmed.\u00a0 The ancient Chinese recognized that if messengers were punished, communication between enemies would cease, and an end to war could never be negotiated; they recognized that punishing messengers threatened the act of communication itself.\u00a0 Unfortunately, as we shall see, the modern Chinese have not been so wise.<\/p>\n As I talk about the ancient Romans and the ancient Chinese, you may be wondering: how did I learn the ancient origin of this modern phrase, \u201cdon\u2019t shoot the messenger\u201d?\u00a0 I must admit that I learned it the way that many of us learn things today, in the year 2012:<\/p>\n I searched for it on Google, and then read about it on Wikipedia.<\/p>\n The search engine Google, that helps us navigate the vast World Wide Web, and Wikipedia, the unprecedented, user-generated encyclopedia with over 21 million articles written in 283 languages, are themselves messengers.\u00a0 Those services, and services like Facebook, and Twitter, and YouTube, and email providers and web hosts and Internet access providers, are all modern messengers.\u00a0 And these modern communications intermediaries, along with the broader Internet ecosystem and economy, have been able to flourish in the United States and in the European Union because policy makers there made an important decision early in the development of the commercial Internet.\u00a0 They decided to heed the lessons of history and build legal frameworks that protected online intermediaries against liability for the content that their users communicate.\u00a0 These internationally established best practices, shielding intermediaries against liability, are worth examining, because they provide important guidance on how best to cultivate a healthy, innovative, and economically productive information society.<\/p>\n It almost goes without saying that the power of the Internet as a publishing technology empowers lawbreakers just as it empowers the law-abiding.\u00a0 Just as the Internet has allowed billions of people across the globe to express themselves in new and legal ways, it too has provided a new venue for the publication of illegal material.\u00a0 What counts as legal and illegal speech will, of course, turn on the applicable national laws.\u00a0 Different nations with different cultures will often have different rules about what types of expression the law protects and what types of expression are unlawful\u2014different rules regarding speech that is alleged to be defamatory, or obscene, or invasive of privacy, or infringing of intellectual property rights, or dangerous to national security.<\/p>\n I am not here tonight to debate how different countries should make those decisions.\u00a0 Rather, I am here tonight to explain a decision made in the United States and in the European Union, a decision with which the Center for Democracy & Technology strongly agrees: that is, the decision that intermediaries should not be held liable when their customers engage in unlawful expression using their services.\u00a0 That decision has proven critically important to the growth and continued vitality of the Internet as an engine of innovation, free expression, and economic growth.<\/p>\n The United States was the first country to establish a clear legal framework to protect Internet intermediaries, back in 1996 when the commercial Internet was still in its infancy.\u00a0 My organization, the Center for Democracy & Technology, was one of several key stakeholders that worked with the United States Congress to develop that law, called Section 230 of the Communications Act.\u00a0 The US Congress passed Section 230 to promote the continued rapid and innovative development of the Internet by giving intermediaries strong protection against liability for content created by third parties.\u00a0 Specifically, Section 230 provided and still provides that Internet intermediaries\u2014referred to in the law as \u201cinteractive computer services\u201d\u2014\u201cshall [not] be treated as the publisher or speaker of any information provided by another information content provider.\u201d<\/p>\n This strong protection from Section 230 has since been used by a wide variety of online services as a shield against a wide variety of legal claims based on content posted by their users, including claims of negligence, fraud, privacy invasion, violation of civil rights, and defamation.\u00a0 Of course, the users who create illegal content can still be sued or prosecuted for the content they create. But Section 230 ensures that the blame lies with the originator of the offending content, rather than with the messenger who delivered it.<\/p>\n Meanwhile, another law passed in 1998, the Digital Millennium Copyright Act or \u201cDMCA\u201d<\/span>, provides similar protection for online services against claims of copyright infringement. Although somewhat complex in its details, the DMCA<\/span> for example will provide a service provider with \u201csafe harbor\u201d \u2013 that is, liability protection \u2013 against claims of copyright infringement if it takes down allegedly infringing material when notified by the copyright owner.\u00a0 This type of intermediary liability protection is referred to as a \u201cnotice and takedown\u201d or \u201cnotice and action\u201d regime, and it is this model that the European Union followed when, in the year 2000, it codified its own system of strong intermediary liability protections for Internet services in the E-Commerce Directive.<\/p>\n It is precisely these types of strong protections for online intermediaries that have led to the dramatic growth of online forums, social networks, and other interactive, user-generated content sites that have become vibrant platforms for expression in the U.S., Europe, and all over the world.\u00a0 Indeed, without laws like Section 230, so-called Web 2.0 services that rely on user-generated content may never have even been funded or built, either due to the fear of potential liability or the high cost and impracticality of trying to pro-actively police all of the content being posted to such services.<\/p>\n Many of you know the story of how a young student named Mark Zuckerberg<\/span> created Facebook in his university dormitory, with only a few friends and a few thousand dollars.\u00a0 This is the type of Internet success story that we like to celebrate, because it illustrates how small innovators can become Internet titans; indeed, it\u2019s such a powerful story that Hollywood has already made a movie about it that you may have seen, called \u201cThe Social Network\u201d.\u00a0 But it\u2019s also the kind of story that could never have happened if Mark Zuckerberg<\/span> had not been protected by law against liability for the thousands, then millions, and eventually billions of messages and photos posted to Facebook, because some percentage of those messages were and are certainly illegal in some respect.<\/p>\n Facebook would never have survived if, in order to avoid lawsuits, Mark Zuckerberg<\/span> immediately had to hire an enormous staff to try to monitor all of those communications for potential illegality.\u00a0 I use the word \u201ctry\u201d because even with an enormous staff, and sophisticated technology, and all the money in the world, no communications provider could ever successfully prevent any and all illegal content from being transmitted or posted over its service.<\/p>\n The futility of such an attempt at filtering becomes especially clear when you look at the enormous scale of Internet communications.\u00a0 For example, by the middle of 2011, users of Twitter were publishing over 200 million messages, or \u201ctweets\u201d, per day\u2014that\u2019s over two thousand messages a second.\u00a0 Similarly, in the same year, users of YouTube were uploading 48 hours of video every minute\u2014nearly 70,000 hours of video per day.<\/p>\n It is exactly this astonishing rate of Internet communication\u2014this enormous flood of human expression\u2014that makes the Internet so incredibly important and valuable, and at the same time makes the idea of intermediary liability so impractical.\u00a0 Certainly, Internet companies could try to monitor everything, and try\u2014despite their lack of the necessary expertise and information\u2014to determine what content is legal and illegal, and attempt to pre-screen everything before it gets posted.\u00a0 Even then, though, much illegal content would still get posted, and the companies would still face lawsuits or prosecutions for it.\u00a0 Meanwhile, the enormous engine of expression that is the Internet would grind to a halt, along with the Internet economy.\u00a0 Illegal online speech would still exist, while the unprecedented flood of completely legal expression, opinion, and information that we have all benefited from, both culturally and economically, would slow to a trickle.<\/p>\n Countries that insist on trying to hold intermediaries liable for what their users do therefore threaten not only the democratic value of free expression but also their own economic growth.\u00a0 Such countries discourage the Internet companies of other nations from investing in and doing business in their country.\u00a0 At the same time, they make it harder for small innovators in their own country to create services that can effectively compete against those outside companies.<\/p>\n When an Italian court convicts Google executives of an invasion of privacy based on a video that was posted to YouTube even though Google took down the video as soon as it was notified\u2014which actually happened in 2010\u2014it discourages other Internet companies from doing business in Italy, and also discourages Italian innovators from building their own video services.<\/p>\n When Indian prosecutors bring criminal charges against Google and Facebook and Microsoft and Yahoo and local companies as well for hosting allegedly blasphemous online content, even though those companies were never even notified of the illegal content\u2014which is actually happening right now\u2014it has the same discouraging effect.<\/p>\n When Chinese law is so restrictive that in order to try and avoid liability, major online services must employ massive and massively expensive armies of staff to try to identify and take down any and all illegal content, how can a newer, smaller, more innovative communications service ever compete?\u00a0\u00a0 It can\u2019t.<\/p>\n Unfortunately, these concerns are not limited to Italy, or India, or China.\u00a0 Rather, and as Dr. Ramasoota<\/span> and Mr. Bhadungrat<\/span> will describe, Thailand risks walking this same dangerous path.\u00a0 The lack of clear legal protections for Internet intermediaries in Thailand\u2019s Computer-Related Offences<\/span> Commission Act or \u201cCCA\u201d<\/span> not only threatens the Thai people\u2019s right to free expression generally but also threatens innocent intermediaries with years of imprisonment.\u00a0 By threatening the messenger, the CCA<\/span> also threatens Thailand\u2019s future economic growth and its ability to compete in a global Internet economy.<\/p>\n The next revolutionary, innovative Internet service\u2014the next Facebook, the next Twitter, the next Google, the next company that will compete with those established giants\u2014doesn\u2019t have to come from the United States.\u00a0 The next Mark Zuckerberg<\/span> could come from Bangalore, or Beirut, or here in Bangkok\u2014but only if the law protects local innovators against intermediary liability so that they can effectively compete against American and European companies.<\/p>\n It was true over two thousand years ago, in ancient Rome and in ancient China, and it is true here, today: punishing the messenger ultimately threatens the integrity of the network through which messages are received, whether that network is made of flesh and blood or made of fiberoptic cables and wireless signals.\u00a0 Unless we protect our messengers from punishment\u2014unless we provide clear protections in law against intermediary liability\u2014we threaten our own access to knowledge, and we threaten to stifle technological innovation in the ways that we access knowledge, making us all poorer.<\/p>\n I want to thank you so much for allowing me to share my perspective tonight.\u00a0 I look forward to hearing from the rest of the experts on the panel, and I look forward to your questions.<\/p>\n","protected":false},"featured_media":0,"template":"","content_type":[7251],"area-of-focus":[77,798],"acf":[],"_links":{"self":[{"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/insight\/19305"}],"collection":[{"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/insight"}],"about":[{"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/types\/insight"}],"version-history":[{"count":0,"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/insight\/19305\/revisions"}],"wp:attachment":[{"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/media?parent=19305"}],"wp:term":[{"taxonomy":"content_type","embeddable":true,"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/content_type?post=19305"},{"taxonomy":"area-of-focus","embeddable":true,"href":"https:\/\/cdt.org\/wp-json\/wp\/v2\/area-of-focus?post=19305"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/www.cdt.org\/misc\/feed.png\")
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\nPrepared Comments for the Panel Discussion,
\n\u201cIs Thailand Ready to Leap Forward in the Information Economy?\u201d
\nDelivered March 29, 2012 at the Foreign Correspondents\u2019 Club of Thailand in Bangkok<\/strong><\/p>\n