At a glance:  This session highlighted the issues surrounding the liability and responsibility of intermediaries on the Internet, the effectiveness of notice and take-down procedures, safe harbor provisions, and the practical impossibility in some countries with large populations of Twitter and Facebook users of effectively cracking down on Internet users.  Charles Mok, a Hong Kong Legislative Councillor, commented that “site blocking is simply censorship, and I don’t want to give more power to the government“.

Panel D: Internet and Free Speech (75 min, 15 min Q&A)
Moderator: Mr. Peter Noorlander (Media Legal Defence Initiative, UK)
Speakers: Mr. Mark Stephens (President, Commonwealth Lawyers Association)
Hon. Charles Mok (Legislative Council, Hong Kong, represents Information Technology industry)
Prof. Harry Roque (Cyber law reform in Philippines)
Mr. Bambang Harymurti (Editor-in-Chief, Tempo magazine, Deputy Chair, Indonesia Press Council)
Mr. Marcelo Thompson (HKU Law-liability of internet intermediaries)

Panel D focused on the evolving effects that the Internet has on the development of media law, as well as the growing threat of new cyber laws and their differential impact on the Intent, blogging and social media.  Commenting on the issue of libel tourism in the UK, Mark Stephens illustrated a recent application of the substantial harm principle in the case Pavel Karpov vs. William Felix Browder (2013), in which the High Court struck down a libel action on the basis that the claim did not have sufficient connection with the jurisdiction.

Dr. Marcelo Thompson presented a normative analysis of the moral and deontological obligations of Internet intermediaries, including Internet service providers (ISPs).  Departing from the approaches to intermediary liability at opposite ends of spectrum, namely the approach adopted by Europe, where they have an obligation to take down content upon receipt of notification, and that taken in the US, where intermediaries enjoy absolute immunity, Thompson advocated an alternative approach in which the liability of intermediaries would accrue from their normative attitudes that they adopt.  This approach rests on “best efforts obligation” and responsible communication on the part of intermediaries, similar to the responsible journalism test for publishers.

The Hon. Charles Mok discussed the liability of intermediaries in Hong Kong and the possibility of a safe harbor exception, in light of the current consultation by the government on the treatment of parody and derivative work under proposed amendments to copyright legislation.  Mok also observed that there is a growing tension between the Internet and data protection laws, exemplified by the recent case where the mobile application “Do No Evil”, which allows users to access a database of litigation and bankruptcy cases, was found to infringe the right to privacy by the Privacy Commissioner for Personal Data.  The information and technology industry has reacted strongly to the Privacy Commissioner’s narrow interpretation of personal information, as it ran counter to the open data movement which envisions a wider dissemination of public sector information for value-added re-use.  As a solution to the growing conflict between public information and privacy, Mok suggested the creation of an exemption for personal data in the public domain.

Bambang Harymurtidenounced the criminal offence of online defamation under Indonesia’s Internet laws, the penalty for which is even more severe than the punishment for criminal defamation under old colonial penal codes.  The Supreme Court of Indonesia’s recent upholding of the conviction of Prita Mulyasari for Internet defamation charges epitomized the unfairness of the current law despite her acquittal in a related civil case.  While acknowledging that there are signs that the government is considering to revise the penalty to online defamation, Harymurti lamented the fundamental difficulty with justifying criminal defamation.

The degree of state control of the Internet is a significant issue in the Philippines given its status as the country with the highest number of social media users, Harry Roque contended.  Following from his earlier discussion of the Philippines’ Cybercrime Prevention Act in Panel B, Roque challenged the constitutionality of cybersex provisions under the said Act on the basis that it is overly broad.  By imposing a more severe penalty than original libel under the revised penal code, the provisions on cyber libel also raises issues of double jeopardy as well as equal protection before the law.

A key discussion during the Q & A session of this panel concerned the anonymity of the Internet and how to best ensure that users are more responsible and ethical.  While pointing out that anonymity is not absolute as indelible marks are left and could be discovered, Stephens believed that readers would generally subscribe to reasonable views and extremity will eventually be filtered out.  Roque considered this issue as a technological version of the free marketplace of ideas, under which the best test for truth is the power of an idea to be accepted as truth.  Mok declared that anonymity is a core value of the Internet, as it conducive to whistle-blowing and truth.  In contrast, attempts by China to establish a real-name registration system on the Internet are considered as stifling to free speech and a form of censorship.  He also warned of a heightened risk of surveillance upon the provision and storage of identification information on the Internet.

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