ISPs, Internet Defamation and Intellectual Property Rights Infringement

ISPs as publishers are legally responsible for content posted on their web sites, whether it is in the form of a forum, blog, or published article. This liability extends for instance to defamation intellectual property rights infringement, under the civil law and pornography, and racist material under the criminal law system. Defences to legal proceedings are now available provided prompt action is taken.

It used to be the case that managing such liability was difficult for an ISP, as they were potentially caught between a publisher and the person complaining of the content. The person who placed the content on their services probably had a contractual right to do so, unless it was explicitly excluded. The person whose rights were infringed would have been in a position to commence proceedings of the content was not removed. This type of liability is readily managed by catering for contingencies and giving discretion to the ISP to remove any such content as they saw fit. Such discretion is essential to administering a forum where third party’s rights may be affected and the public at large have the ability to upload content as they wish.

Defamation

The popularity of internet forums has seen an increase of name calling and criticism that moves from fair comment into comments that are libelous due to the defamatory meanings embodied within them. The accessibility of these forums and the opportunity to do so does not reduce or ease the legal liability for the maker of the comments, however defences are available to ISPs where they are acting as a mere conduit, and when put on notice of the defamatory material promptly remove it. Implementation of procedures to bring complaints to the attention of moderators is key in order to manage the inherent risk involved in making forums available to the public at large.

Intellectual Property Rights

Nature of the Internet and Implied Licences

Before the introduction of legislation that clarified the rights of ISPs, it was a commonly held view that ISPs were entitled to cache and otherwise reproduce content, due to the way the Internet works -- a licence to cache and reproduce content would be implied, because a rights owner would be presumed to be aware that that was how content posted onto the Internet would be dealt with - it was copied. It has been said that the Internet is a world-wide copying engine, on the basis that content, whether it is a web page, image, sound recording, or text based article, must be reproduced in order for content to be delivered to the end user’s screen. Accordingly, it may have been said that reproducing content for that purpose was a fair use of the content, in whatever form it may be. Uses other than for the operation of the Internet, such as commercial uses are an entirely different question.

Criminal Law

Criminal offences differ from civil offences such intellectual property rights infringement and defamation, in a state or country has implemented some form of protection for a public policy interest, and making such an offence punishable by the state, with the resources of the state seen as appropriate to enforce an areas of law. Pornography for instance, is strictly regulated. The places and the circumstances that pornography may be purchased in England are highly regulated.

Regulation 17 of the Ecommerce Regulations provides a defence to ISPs for content transmitted over their networks where the ISP does not play a role in initiating the transmission, selecting the user receiving the transmission and does edit or select the information contained in the transmission. This language of the Regulations is essentially defining the circumstances where an ISP is in fact a mere conduit or carrier of the information, rather than a broadcaster or other type of agent specifically delivering material to end users. When the ISP acts as a conduit, or conveyer of the information in this way, the ISP not liable for the content of the transmission regardless of the content of the material communicated. The defence extends to incidental reproductions of content that take place for the purpose of the communication.

Caching Content

ISPs rather than having to rely on implied licences to cache content, may now rely on Regulation 18 of the Ecommerce Directive to avoid liability for damages and any other criminal liability where the ISP take the role of a conveyer of information or communications and does not take an active role in the selection of the content.

ISPs are similarly not liable for intellectual property rights infringements where it hosts content and takes expeditious action to remove access to the content once it is put on notice that the information was unlawful

In Closing

The responsibility of ISPs to monitor material is ameliorated by the provisions of the Ecommerce Regulations. Provided the management systems are in place that brings unlawful content to the attention of moderators or IT staff, and the information or content is promptly removed, liability may be avoided. The terms and conditions of customer contacts should make it clear that the ISP reserves its rights to remove content with or without notice to the customer.