ISPs side-step liability for illegal content

By Matt Loney

Internet service providers and network operators in the UK are breathing a sigh of relief today, having discovered that they cannot be held legally liable for any content held on, or passing through, their networks.

Measures providing the protection from prosecution are contained in the Electronic Commerce (EC Directive) Regulations 2002, which were finally published by the government on Monday, less than two weeks before they are due to come into force.

The new rules were generally welcomed by the ISP industry, which had lobbied hard in the wake of a case that saw Demon Internet successfully sued for defamatory remarks posted on its news groups.

Demon said at the time that with more than a million messages a day posted to the service, it was not possible to scan them all.

But one key issue has still not been satisfactorily resolved, according to the ISP Association (ISPA): what ISPs should do with content once they have been warned that it may be illegal.

Although Demon was warned about the message on its server, it did not remove it - a decision backed by other service providers at the time, who contended that it was untenable for ISPs to police their servers.

Although the final regulations have removed doubt over limitations on civil and criminal liability of service providers who transmit, cache or host third-party content, they still do not outline a formal procedure for the removal of illegal content (known as notice and takedown) or provide statutory backing for notice and takedown codes of practice.

The regulations do go some way to defining how service providers might be deemed to have "actual knowledge" of the illegal nature of third party content, but according to ISPA secretary general Nicholas Lansman, more is needed.

"Formal procedures governing the removal of illegal material [notice and takedown] need to be developed to further clarify the rights and responsibilities of service providers," said Lansman, adding that the government has agreed to meetings with industry on how such issues will be addressed by codes of practice.

Lansman said that ISPA will also continue to push for clarification on limiting the liability of other types of intermediaries, such as providers of hyperlinks, location tools and content aggregation, "as the absence of legislation creates legal uncertainty".

John Enser, partner in the media and communications technology group at City law firm Olswang, said ISPs had done well out of the legislation. "If you talk to ISPs then they will quibble and say the don't have a definition of 'actual knowledge', but compared to where they stood under English defamation law they are in a good position."

Click http://www.silicon.com/a55104 for more on the regulations, and why they're good news for UK e-tailers

Matt Loney writes for ZDNet UK