A/HRC/17/27 includes “insulting” the founder of the Republic of Turkey, Mustafa Kemal Ataturk. In Thailand, the 2007 Computer Crimes Act imposes liability upon intermediaries that transmit or host third-party content and content authors themselves.22 This law has been used to prosecute individuals providing online platforms, some of which are summarized in the first addendum. 40. In other cases, intermediary liability is imposed through privacy and data protection laws. For example, a court in Italy convicted three Google executives for violating the Italian data protection code after a video depicting cruelty to a disabled teenager was posted by a user on the Google video service. Even though the video was taken down within hours of notification by Italian law enforcers, the judge found the Google executives guilty.23 The Government of China requires ISPs and web platforms to conduct surveillance on their users, and they are also held directly responsible for content posted by users.24 Companies that fail to comply with this obligation risk losing their business licences. Holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law. 41. Several States have sought to protect intermediaries through adopting variations on what is known as a “notice-and-takedown” regime. Such a system protects intermediaries from liability, provided that they take down unlawful material when they are made aware of its existence. For example, under the European Union-wide E-Commerce Directive, a provider of hosting services for user-generated content can avoid liability for such content if it does not have actual knowledge of illegal activity and if it expeditiously removes the content in question when made aware of it.25 Similarly, the Digital Millennium Copyright Act of the United States of America also provides safe harbour for intermediaries, provided that they take down the content in question promptly after notification.26 42. However, while a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behaviour on their services, it is subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown.27 Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decisionmaking process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences. 22 23 24 25 26 27 12 Computer Crimes Act B.E.2550 (2007), sections 14 and 15. Reporters without Borders, “Google conviction could lead to prior control over videos posted online”, 24 February 2010. Reporters without Borders, “Enemies of the Internet,” March 2010. Available from: http://en.rsf.org/IMG/pdf/Internet_enemies.pdf, pp. 8-12. E/Commerce Directive, 2000/31/EC, art. 14. Digital Millennium Copyright Act, Section 512. N. Villeneuve, “Evasion Tactics: Global Online Censorship is Growing, but so are the Means to challenge it and Protect Privacy”, Index on Censorship Vol. 36 No. 4, (November 2007); Center for Democracy and Technology, “Campaign takedown troubles: how meritless copyright claims threaten online political speech” (September 2010).