Intermediary Liability and Child Pornography: A Comparative Analysis

Arun B. Mattamana, Anjali Anchayil


With the increasing instances of transmission of child pornography over the internet, the liability of the host of service providers who facilitate the transmission of the content has become a contentious issue. With varying legal regimes, jurisdictional issues and standards of obscenity applied as well as varying degrees of care to be exercised, this area is a legal quagmire. This article addresses the question of whether we need an intermediary liability regime or not. The article posits that intermediary liability does not address the question of preventing transmission of child pornography as the actual culprits remain beyond the reach of law. A scheme of intermediary liability only acts as a disincentive to the intermediary to innovate and hinders growth of internet services. A comparison of three regimes, United States, European Union and India, is undertaken to see the legislative measures, developments in case law and analyze their stand towards the intermediary. The Article finally works towards arriving at alternative options so that the autonomy of the intermediary is not compromised through over-regulation and censorship.

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