Navigating Intermediary Liability: A Comparative Analysis of Content Moderation and 'Mere Conduit' Protections in Ghana, the EU, and the US

Navigating Intermediary Liability: A Comparative Analysis of Content Moderation and 'Mere Conduit' Protections in Ghana, the EU, and the US

On 25 August 2024, thehackernews.com reported the arrest of Telegram's Founder Pavel Durov in France for failing to adequately moderate harmful content on his platform which is host to over 950 million monthly active users. This incident brings to light the increasing pressure on online platforms to balance content moderation with the legal responsibilities set out for intermediaries. The case highlights the challenges and potential liabilities that online intermediaries face under various legal frameworks, particularly in jurisdictions such as the European Union (EU), the United States (US), and Ghana.

This article provides a comparative analysis of the legal frameworks governing intermediary liability, with a focus on "mere conduit" services and the implications of content moderation on potential liabilities. By examining the laws in the EU, US, and Ghana, the analysis will shed light on how these jurisdictions handle the delicate balance between protecting intermediaries and ensuring accountability for harmful content.

The Concept of Mere Conduit in Intermediary Liability

"Mere conduit" refers to intermediaries that act as passive transmitters of information, without altering or influencing the content. This classification is crucial in determining the extent of an intermediary’s liability for content transmitted through their services.

EU’s Digital Services Act (DSA)

The EU’s Digital Services Act (DSA), which became fully effective in February 2024, categorises online intermediary services into mere conduits, caching services, and hosting services. Under the DSA, mere conduits, which include services like internet exchange points and DNS services, are generally exempt from liability for the content they transmit. This exemption is contingent upon the service provider not initiating the transmission, selecting the recipient, or modifying the transmitted information (Privacy World, 2024). The DSA’s framework is designed to protect intermediaries that operate in a purely technical capacity, ensuring that they are not held liable for content they neither control nor create.

United States: Section 230 and DMCA Safe Harbour

In the United States, intermediary liability is primarily governed by Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act (DMCA). Section 230 offers broad immunity to online platforms, protecting them from liability for user-generated content. This immunity has been a cornerstone of the US’s approach to fostering innovation and free expression online. Similarly, the DMCA provides a safe harbour for intermediaries against copyright infringement claims, provided they comply with specific requirements, such as promptly removing infringing content upon notification (Center for Democracy and Technology, 2024).

Ghana: Electronic Transactions Act, 2008 (Act 772)

Ghana’s Electronic Transactions Act of 2008 provides a similar framework, protecting intermediaries classified as mere conduits from liability. Section 90 of the Act stipulates that intermediaries are not liable for the transmission, routing, or storage of electronic records if they do not initiate the transmission, select the recipient, or alter the content. This protection is crucial for enabling intermediaries to operate without the constant threat of liability for content they do not control (Electronic Transactions Act, 2008).

Content Moderation and Legal Liabilities

While the mere conduit concept provides essential protections for intermediaries, the increasing demand for content moderation introduces complexities in determining liability. Platforms are now expected to actively manage and mitigate the spread of harmful content, raising questions about their legal responsibilities and potential liabilities.

The EU DSA and Content Moderation

The DSA imposes new obligations on platforms, particularly large ones, to engage in proactive content moderation. While mere conduits remain exempt from liability, hosting services that fail to act upon receiving knowledge of illegal content can be held liable. This marks a shift in the EU’s approach, from merely protecting intermediaries to holding them accountable for the content they host when they have the capacity to intervene (Digital Services Act, Article 5, 17, 19, 20, 21).

US Approach: Section 230 and Its Evolving Landscape

Section 230 has been a critical legal shield for US intermediaries, allowing them to host a wide array of content without being held liable for its legality. However, the broad immunity it provides has come under increasing scrutiny, with growing calls for reform. Critics argue that Section 230 allows platforms to avoid responsibility for harmful content, while others maintain that weakening this protection could stifle free speech and innovation. Recent legislative proposals and court rulings indicate a potential narrowing of the scope of Section 230, particularly in cases involving disinformation and other harmful content. (Center for Democracy and Technology, 2024).

Ghanaian Perspective on Content Moderation

In Ghana, the Electronic Transactions Act of 2008 provides a solid foundation for intermediary liability but does not impose significant obligations on platforms regarding content moderation. While the Act protects mere conduits, it does not explicitly address the issue of content moderation. This lack of detailed regulation could be seen as a gap in the law, potentially leaving Ghanaian platforms vulnerable to legal challenges as they increasingly engage in content moderation activities.

Comparative Analysis of Legal Liabilities

Immunity and Innovation

The legal frameworks in the EU, US, and Ghana all recognize the importance of providing immunity to intermediaries to foster innovation and ensure the free flow of information. The DSA and Section 230 have been instrumental in enabling the growth of the internet by reducing the legal risks associated with hosting user-generated content. Ghana’s approach, which aligns with these principles, offers similar protections to mere conduits, thereby encouraging the development of digital services.

However, as platforms increasingly engage in content moderation, the extent of this immunity is being questioned. The DSA’s requirements for proactive content moderation by large platforms and the evolving debates around Section 230 in the US suggest a shift towards greater accountability for intermediaries. Ghana, in contrast, has yet to fully address these global trends, potentially leaving its legal framework less robust in managing the complexities of content moderation.

Content Moderation: Balancing Act

Content moderation presents a complex challenge for intermediaries. On the one hand, it is necessary for maintaining a safe and lawful online environment. On the other hand, it increases the risk of liability, as platforms that engage in content moderation may be seen as stepping beyond the role of mere conduits. The DSA addresses this by clearly distinguishing between different types of intermediary services, with specific obligations tied to each category. In the US, the tension between content moderation and intermediary liability is evident in the ongoing debates around Section 230, where the desire to hold platforms accountable for harmful content clashes with the need to protect them from excessive legal risks.

In Ghana, the absence of detailed content moderation obligations reflects a different regulatory approach, one that prioritises the protection of intermediaries from liability over the imposition of content moderation duties. This approach may offer short-term benefits in terms of legal certainty for intermediaries but could also result in a less robust framework for addressing harmful content online.

Conclusion

The potential liabilities associated with content moderation are deeply intertwined with the legal frameworks governing intermediaries. The concept of mere conduit remains a critical component of these frameworks, offering protection to intermediaries that operate as passive transmitters of information. However, as platforms increasingly engage in content moderation, the boundaries between mere conduits and active participants in content dissemination become blurred, raising new legal challenges.

The EU’s DSA, the US legal framework under Section 230 and the DMCA, and Ghana’s Electronic Transactions Act all provide varying degrees of protection to intermediaries, with different approaches to balancing innovation, free expression, and the need for accountability. As digital platforms continue to evolve, these legal frameworks will need to adapt, ensuring that intermediaries can operate without undue risk while also fulfilling their responsibilities in moderating harmful content.

Ghana, in particular, has the opportunity to learn from the experiences of the EU and the US in crafting a legal framework that both protects intermediaries and addresses the challenges of content moderation in a digital age. The arrest of Pavel Durov serves as a stark reminder of the potential consequences of content moderation failures, underscoring the importance of clear and balanced legal frameworks that can navigate the complexities of intermediary liability in a rapidly changing digital landscape.

Writer:

Desmond Israel Esq.

Lawyer | Data Privacy/Information Security Practitioner?

Founder, Information Security Architects Ltd (Rapid 7 Gold Partner)

Adjunct Lecturer (Ghana Institute of Management and Public Administration)

Technology Policy Researcher (AI, Cybersecurity, Global Data Privacy, Metaverse, Blockchain)

佩雷斯埃德加

他是一位著名的国际顾问,书籍作者和充满活力的演讲者: 人工智能,深度学习,元界,量子和神经形态计算,网络安全,投资动态。

3 个月

More than 100 children are in danger. It is time for Pavel Durov to do the right thing. https://lnkd.in/ge7Y5Ev2

Sylvester Hatsu (PhD)

Technology Researcher | Information Systems (IS) Specialist |Fintech Consultant | Cyber Resilience Strategist | Privacy & Data Protection Enthusiast

3 个月

Thanks Desmond Israel ESQ for this well written article.

Agbenya Adotey

Cybersecurity Leader | GRC Professional

3 个月

So in this case, was it that he was advised by probably his CISO or similar role and he did not take it ?

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