The Five Systems Side by Side
Chapter Seventy-Four
Syllabus topic 3.2, "United nations, India, U.S.A, Europe and China."
Pages 455 to 461 of 948
In one line
Four tables, five systems, and one axis at a time.
In the wording a student can write in an exam: the five systems named by the syllabus may usefully be compared on four axes, namely liability for content published by another, the protection of personal data, the powers of the State over the network, and jurisdictional reach; on each axis the United Nations supplies non-binding models and one convention not yet in force, the United States protects the platform and the speaker most and the data subject least, the European Union regulates by process and by right, China regulates by sovereignty and affirmative duty, and India occupies a middle position in which an immunity conditional on compliance with executive rules does most of the regulatory work.
How to use this chapter
Take one axis, give each system its provision, then say what the difference costs. Chapter 560 sets out the method and this chapter supplies the material.
And remember that the five are not comparable units. The United Nations is not a State and legislates for nobody. The European Union is not a State but has a legislator whose regulations apply directly. India, the United States and China are States, and the United States is a federation in which much of the relevant law is State law. Chapter 560 makes the point and an answer should make it once.
Axis one: liability for content published by another
| Provision | Trigger for removal | Conditional? | Duty to monitor | |
|---|---|---|---|---|
| United Nations | Model Law art. 2(e) defines an intermediary and excludes it from being originator or addressee. No liability rule at all | |||
| India | s.79 with the IT Rules 2021 | Court order or government notification, after Shreya Singhal; shorter windows for specified categories | Yes, on function, on knowledge, and on compliance with the Rules, r.7 | Required for specified categories, r.4(4); and verification of synthetic content, r.3(3) |
| United States | s.230 CDA, and s.512 DMCA for copyright | Nothing required for s.230; a private notice for copyright | No for s.230; yes for s.512 | No, s.512(m) |
| European Union | Arts. 4 to 6 DSA, with arts. 16, 17, 20 to 22 and 34 to 35 | A substantiated private notice gives actual knowledge, art. 16(3) | Yes, on function and knowledge; the due diligence duties are separate obligations | No general obligation, art. 8; own-initiative measures protected, art. 7 |
| China | Art. 47 CSL | The operator's own discovery | No immunity exists; the duty is affirmative | Yes, by implication of art. 47 |
The axis that matters: who decides that content is unlawful?
Nobody need decide in the United States. The platform may act or not, and section 230(c)(2) protects the choice either way.
The rest of this chapter
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