Platform liability: the intermediary-services frame
An online platform that transmits, stores or hosts information between users is often built on foreign models. In Georgia these relations are governed by the Law on Electronic Commerce, whose chapter on intermediary services defines exactly when a platform is responsible for the information of its users and when it is not. On this page we explain these rules: transmission of information, caching, hosting, the absence of a monitoring obligation and the protection mechanisms for the recipient of services.
Transmission of information
Under the law, in transmitting a recipient's information through a communications network, or in providing access to the network, an intermediary service provider is not responsible for that information if: it did not initiate the transmission; it did not select the recipient of the transmitted information; and it did not select or modify the content of the transmitted information. The exception embraces the automatic, intermediate and temporary storage of information in so far as it occurs for the purpose of the transmission process, and the information is not stored longer than technically necessary for its forwarding.
Caching
For temporary storage in the course of transmission — caching — the platform is not responsible for the stored information or its content if the storage serves the aim of efficient and fast delivery to other recipients and the provider: does not modify the information; does not interfere with the conditions of ensuring access; complies with the rules on updating generally accepted in the industry; does not hinder the lawful use of widely recognised technology for receiving data on the use of information; and immediately deletes the stored information or restricts its accessibility once it learns that it has been removed from the original source or its accessibility restricted, or that a court or competent authority lawfully so requires. The caching exception, in other words, is conditional — it operates only while the five rules of conduct are observed.
Hosting
In storing users' information — hosting — an intermediary provider is not responsible for the stored information if one condition exists: it has no actual knowledge of unlawful activity or information — and in a damages claim, is not aware of facts or circumstances from which the unlawful information becomes apparent; or, upon obtaining actual knowledge of unlawful information, it immediately removes it or restricts its accessibility. The exception does not extend to a case where the recipient acts in the name of the provider or is managed by the provider. In practice this is the frame on which the notice-and-action model rests: the platform is not obliged to discover, but once it knows — immediate removal or restriction of unlawful content becomes mandatory.
The absence of a monitoring obligation
As the price of these three exceptions the law sets a boundary: it is prohibited to impose on an intermediary service provider an obligation to monitor the information it transmits or stores, or to undertake active measures aimed at detecting unlawful actions. At the same time, at the request of a court or competent authority it may be tasked, in cases and by the procedure provided for by legislation, to provide identifying information about the recipient with whom it has a storage agreement, and other information about that recipient, for the detection, prevention and suppression of unlawful actions.
Protection of the recipient of services
The frame is two-sided: where the provider fails to perform the duties connected with information requirements and the conclusion and performance of the contract, the recipient of services may apply to the agency. This right does not deprive the recipient of the right to apply to a court or arbitration or to resolve the dispute through mediation. The exceptions thus relieve the platform of general liability, but do not obstruct state supervision or the consumer's complaint routes.
We help assess the model of a platform: we determine in which regime your service operates — transmission, caching or hosting; arrange procedures for responding to notices; draft terms that do not breach the conditions of the exceptions; and represent your interests before the agency and in court. Contact us — we will assess your platform.
What this means operationally for a platform
The operational effect of these rules for a platform can be written into three processes. First, regime determination: one and the same service may operate in different functions under different regimes, and each function has its own conditions for the exception. Second, notice management: the hosting exception rests on actual knowledge, so a fixed process of receiving, reviewing and acting on notices is the evidence of when knowledge arose and what followed it. Third, harmony of terms: user terms must be drafted so as not to cut across the conditions of the exceptions — otherwise the platform, in pursuit of enforcing its own terms, may itself destroy its own defence.
Our support covers these three processes: we analyse the functions of the service and establish which exception extends to which; we explain the organisation of the notice process so that the fact and timing of knowledge are always provable; and we align the user terms with the frame of the law. We also represent your interests before the agency and in court.
One further circumstance: the exceptions release the platform from liability but do not touch the possibility of state intervention — the law directly provides that the provisions do not limit a court or a competent administrative or law-enforcement body from acting within its authority in case of a violation of the law. This means that content may be removed not only upon a notice from an entitled person but also at the demand of the state — and the processes of the platform must account for both routes.