Content on the Internet - When might ISPs be liable?
A recent decision in the Belgian Courts has provided the first ruling in an EU state that an Internet Service Provider (ISP) must block the traffic of material infringing copyright when there the technical facilities to do so are available. This is the first time that a Court has viewed ISPs as having responsibility for the content of the information their customers are transmitting and some commentators have suggested that this is a widening of the risks ISPs face in providing the infrastructure for material to be published on the internet. However, there has been no suggestion in recent decisions in the English Courts that a similar approach might be adopted.
There have been very few decisions on ISP liability in the English Courts. In a recent decision, John Bunt v (1) David Tilley (2) Paul Hancox (3) Christopher Stevens (4) AOL UK Limited (5) Tiscali UK Limited (6) British Telecommunications Plc , the ISP defendants successfully applied to have the claims against them struck out as having no realistic prospect of success and dismissed on a summary basis on the grounds that they disclosed no cause of action. This was the first decision on the liability of ISPs since the Electronic Commerce Regulations came into force in 2002.
The E-Commerce Directive
ISP liability was clarified in 2002 following the E-Commerce Directive which was implemented in the
Mere conduit: (Regulation 17) If an ISP merely transmits information on behalf of a recipient of the service, or simply provides access to a communications network, it will not be liable in respect of that information as long as it did not initiate the transmission, select the receiver of the transmission, or select or modify the information contained in the transmission. Any storage of the information must be for no longer than is reasonably necessary for the transmission.
Caching: (Regulation 18) ISPs who retain or "cache" information on their servers for the sole purpose of facilitating access to the information for subsequent users of the service will not be liable in respect of that information provided they "expeditiously" remove or disable access to the information as soon as they have "actual knowledge" of the fact that the information has been removed from the network, or that access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
Hosting: (Regulation 19) ISPs who host material at the request of a recipient of the service will not be liable in respect of that information if they do not have actual knowledge of any illegal activity, and once they do have actual knowledge, they act expeditiously to remove, or to disable access to, the information.
The John Bunt case
In the claim brought by Mr Bunt, he not only claimed that individuals had published defamatory statements, but also that he had a claim against the individual defendants' ISPs as the offending words were published "via the services provided" by their ISPs. His case was simply that the ISPs had provided a connection to the internet and so had provided third parties with access to the internet and the ability to pass electronic communications from one computer to another resulting in a posting to a Usenet message board. He claimed that an ISP had a duty to act as a gatekeeper to the conduit it was providing.
The judge concluded that to impose legal responsibility on anyone for the publication of words, it was essential to demonstrate a degree of awareness, or at least an assumption of general responsibility. The judge held that, as a matter of law, an ISP which facilitated postings on the internet was only involved in a passive role and could not be deemed to be a publisher. The judge also concluded that two of the ISPs, AOL and Tiscali, were entitled to rely on regulations 17 and 18 of the E-Commerce Regulations because they had established that their role was passive. The other ISP, BT, hosted Usenet newsgroups on its servers and so could not rely on regulations 17 and 18, but as it had not had any notice of any unlawful activity it was entitled to rely on regulation 19 of the Regulations.
The decision in the John Bunt case is not surprising as it follows the E-Commerce Regulations and the principle that ISPs cannot be obliged by national laws to police their services for illegal activity. The Belgian Court's decision involved questions of copyright infringement and so had to include consideration of the Copyright Directive as well as the E-Commerce Regulations. Under the Copyright Directive copyright owners can obtain a court order against an ISP requiring the removal of infringing material. The Belgian Court did not rule that an ISP had to monitor its service for illegal activity. The decision was made on the basis that there was a technical measure available to the ISP that could be used to stop the use of file sharing software and so prevent the copying.
If you would like further advice about any of the issues considered above please contact Paul Northwood on 01869 331753 or email him at firstname.lastname@example.org
This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.