The general principle of intermediary liability
Georgian e-commerce legislation devotes a separate set of rules to service providers who act as technical intermediaries on the internet: they transmit information through a communication network, store it temporarily so that it can be delivered faster, or allocate space on a server for content supplied by users. The underlying principle is clear. As long as the intermediary performs a genuinely neutral, technical function and satisfies the conditions defined by law, it is not responsible for the information transmitted or stored through its services. This exemption is not absolute: it applies only to the specific types of intermediary service named by the law, and only when the precisely listed conditions are fulfilled. Nor does the exemption restrict the powers of a court, or of a relevant administrative or law-enforcement body authorised under Georgian legislation, to act within the powers conferred on it where the law has been breached. On this page we explain in detail how the regime operates for each type of intermediary service and what you need to know, whether you operate a platform or have been harmed by illegal content.
Information-society services and the three intermediary roles
Understanding the exemption starts with the statutory concepts. An information-society service is a service supplied at the individual request of a recipient of the service, for remuneration, by electronic means and at a distance — that is, without the parties being simultaneously present. A service provider is a natural or legal person who provides such a service, and the recipient is the person who uses it. In Georgia, the provision of information-society services is not subject to licensing, permits or authorisation; the exception covers only those activities which other legislation subjects to a licensing, permit or authorisation regime. Within this field, the law singles out three specific types of intermediary service:
- transmission (conduit) — transmission of information through a communication network, or provision of access to such a network;
- caching — automatic, intermediate and temporary storage of information by means of a communication network, through which the information is effectively distributed on the internet;
- hosting — the service of allocating space for the storage of information on a server.
The liability exemptions discussed below apply to these three roles, and they differ from one another by their conditions: for conduit the decisive factor is neutrality in the transmission process, for caching the proper handling of the temporary copy, and for hosting actual knowledge combined with an expeditious reaction.
Conduit: three conditions that must all be satisfied
The conduit regime concerns internet access providers, network operators and any other intermediary that transmits a recipient of the service's information through a communication network or provides access to the network. Such a provider of intermediary services is not responsible for that information provided that all of the following conditions are met:
- it did not initiate the transmission of the information;
- it did not select the recipient of the transmitted information;
- it did not select or modify the content of the transmitted information.
The law also resolves a technical question: automatic, intermediate and temporary storage of the information being transmitted is treated as transmission itself, in so far as the storage takes place in order to carry out the transmission through the communication network — but the information may not be stored for longer than is technically necessary for forwarding it. In practical terms, a provider that is merely a neutral channel, choosing neither the content nor the recipient and modifying nothing, does not answer for the legality of a third party's information passing through its systems.
Caching: temporary storage for effective and rapid delivery
Caching means automatic, intermediate and temporary storage of information in a communication network so that the same information can be delivered to other recipients of the service effectively and quickly. During such storage, the intermediary service provider is not responsible for the information itself or its content only if the following conditions are observed:
- it does not modify the information;
- it does not breach the conditions on ensuring access to the information;
- it complies with the rules on updating information in accordance with widely used and generally accepted industry practice;
- it does not interfere with the lawful use of technology widely recognised and generally used in the industry to obtain data on the use of the information;
- once it learns that the information has been removed from the original source of transmission (deleted), that access to it has been restricted, or that a court or a competent administrative or law-enforcement body has acted within its statutory powers to prevent a breach of the law, it expeditiously removes the stored information or restricts access to it.
The final condition deserves particular attention: the caching exemption lasts as long as the original source exists. As soon as the provider learns that the information has been taken down at its origin or that a competent body has acted, it must promptly delete its stored copy or block access to it. As with conduit, these rules in no way limit the ability of a court or a competent administrative or law-enforcement body to act where the law has been breached.
Hosting: actual knowledge and expeditious removal
Hosting is the service of allocating space on a server for the placement of information — the typical arrangement used by platforms and websites that store recipients' content. When storing a recipient's information, the hosting provider is not responsible for the stored information if one of the following conditions exists:
- it has no actual knowledge of illegal activity or information and, where a claim for damages is brought, it is not aware of those facts or circumstances from which the illegal activity or information becomes apparent; or
- upon obtaining actual knowledge of illegal activity or information, it expeditiously removes the illegal information or restricts access to it.
Actual knowledge is defined precisely: it is knowledge that information or an activity is illegal or possibly illegal, obtained on the basis of decisions of a court or of a relevant administrative or law-enforcement body authorised under Georgian legislation — the law recognises as actual knowledge only knowledge grounded in such decisions. A further carve-out is expressed in the law itself: the exemption does not apply where the recipient of the intermediary service acts in the name of the service provider, or where the service provider manages that recipient — in such a case the hosting shield does not operate. And here too, these rules do not limit the powers of the courts or of competent administrative or law-enforcement bodies.
No general monitoring obligation — and what this means for you
The law directly prohibits imposing on an intermediary service provider covered by the conduit, caching and hosting regimes either a general obligation to monitor the information it transmits or stores, or an obligation to carry out active actions to detect illegal actions. In practice this means that neither the state nor anyone else can require an intermediary to survey traffic or content in advance, in general and across all cases. The prohibition does not, however, extend to the specific situational requirements embedded in the caching and hosting regimes: the duty to remove information or restrict access to it expeditiously upon obtaining actual knowledge operates exactly as written in the law.
If you operate a platform, a caching service or a hosting business, you preserve the exemption through neutrality: do not select content or recipients, do not modify content, observe the industry rules on updates and access conditions, and prepare in advance a procedure that allows you to remove or disable illegal information expeditiously once actual knowledge arrives. If, on the other hand, you have been harmed by illegal content, bear in mind that the intermediary incurs liability only where these statutory conditions are breached, while the responsibility of the author of the content is not extinguished by these exemptions. Finally, every one of the exemptions leaves the way open for a court or a competent administrative or law-enforcement body to act within its powers where the law has been breached.