Internet Committee Publishes Report on Intermediary Liability in Asia-Pacific Region

Published: November 10, 2021

Raunaq Kamath Ira Law New Delhi, India Internet Committee—Internal Communications and Research Subcommittee

The progressive rise in e-commerce transactions and content on platforms has resulted in increasing scrutiny and application of corresponding governing laws across the globe. As part of its Digital Asia initiative, INTA’s Internet Committee has published a report on intermediary liability and takedown practices in 16 jurisdictions in the Asia-Pacific region.

The comprehensive survey of practitioners in the region was a collaborative effort by the Committee’s Digital Asia Subcommittee and the Internal Research and Communications Subcommittee. The resulting report, Intermediary Liability and Takedown Policies in Asia, discusses the general legal framework, including laws governing e-commerce and forthcoming changes in these jurisdictions. It also examines the liabilities of e-commerce entities and other intermediaries and the potential defenses available to them, as well as other issues such as disclosure of user data and takedown policies, obligations, and procedures.

The survey covers Australia, Cambodia, China, India, Indonesia, Japan, Macau, Malaysia, Myanmar, New Zealand, Papua New Guinea, South Korea, Taiwan, Thailand, Uzbekistan, and Vietnam.

Broadly, the report reveals the following emerging trends:

  1. The legal framework governing e-commerce in these jurisdictions is generally based on a combination of intellectual property (IP) laws, consumer protection laws, and data protection and privacy laws. The framework naturally varies, and some jurisdictions have additional codified specific legislation covering e-commerce, information technology, and electronic transactions. Japan, for example, has an Electronic Signature and Certification Business and Unfair Competition Act.
  2. Platform operators across the board potentially face liability in instances of violation of IP rights, especially concerning copyright, consumer protection rights, and data privacy. However, in virtually all the surveyed jurisdictions, platform owners have the benefit of an intermediary liability exemption, particularly in the absence of knowledge of the unlawful activity coupled with general compliance with other legal requirements.
  3. E-commerce sellers may be more directly liable for violations, and the benefit of “intermediary” defenses afforded to them is more curtailed than for platform owners. Secondary liability of platform operators also exists, particularly if the unlawful activity is not addressed upon gaining knowledge of it.
  4. The threshold of “having knowledge” varies from jurisdiction to jurisdiction.
  5. The obligation on platform operators to comply with data protection and consumer protection laws generally precludes brand owners from asking for user details as a matter of right. Nevertheless, courts are empowered to pass orders for disclosure of such information when deemed necessary.
  6. Platform operators ordinarily have effective takedown policies in place to assist brand owners in the removal of either inherently objectionable material or content found to be violative by a court of competent jurisdiction. The general standard for takedown usually involves either a notification from the brand owner or a court order, following which the platform operator is required to remove the content within a specified timeframe. In some cases, platform operators are required to provide an opportunity to the content owner/uploader to dispute the notification given by the brand owner by way of a counter notification.

Some of the jurisdictions require the intermediaries to evaluate the notification and counter notification and thereby play an adjudicatory role for takedown of the content in question. This is a broad overview of emerging trends from a holistic reading of the survey results. Refer to the report for the specific position in the jurisdictions surveyed.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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