Content Liability
ISPs have faced accusations of liability for illegal content held on their servers for some time. Such accusations arise from a misunderstanding of their role, how ISPs work and the technology that makes the Internet possible.
To address this, ISPA has maintained a sustained and effective campaign against ISP liability for illegal third party Internet content that the ISP is not aware of. The ISPA position received significant support from a report into defamation on the Internet by the Law Commission for England and Wales in December 2002.
ISPs are "mere conduits", carriers of information somewhat like the postal service. An ISP is not a publisher: it does not have editorial control over content posted on its servers by a third-party. Thanks to ISPA's co-ordinated lobbying with EuroISPA and others, the E-Commerce Directive recognises that ISPs are 'mere conduits' and sets out legal exemptions for hosted and cached material.
As the Tobacco Advertising and Promotion Bill was progressing through the Houses of Parliament, various attempts were made to label ISPs as "publishers" thereby leaving ISPs open to questions of liability for third party content found on their servers. ISPA successfully countered each attempt made by the Government and others to label ISPs as publishers and remains vigilant to prevent other Bills mistakenly passing liability in all cases to ISPs.
According to the E-Commerce Directive, ISPs should only be liable for prosecution if they attain "actual knowledge" of illegal content held on their servers and fail to remove it.
ISPA continues its quest for a definition and clarification of the term "actual knowledge" from the Government and would like to work with the Government to develop formal procedures governing the removal of illegal material (notice and takedown) to further clarify the rights and responsibilities of service providers.
In the meantime the UK Internet industry continues to run an effective, self-regulatory 'notice and takedown' procedure. This means that when an ISP is made aware of illegal material by organisations such as the Internet Watch Foundation or law enforcement agencies, they remove it.
ISPs rely on the vigilance of the public and the good work of organisations such as the Internet Watch Foundation to make them aware of instances of illegal material on their servers.
It is not possible or practical for an ISP to monitor the content held on their servers because;
1. ISPs deal with a vast amount of articles (websites, emails etc)
2. the immediacy of the Internet - for example content on websites can be changed by the website owner in a matter of seconds
3. ISPs are not qualified, sufficiently authorised or resourced to decide on the legality of all the material on the Internet
4. it is the role of the Government to engage in any filtering or censorship process above the consumer level
5. the provider of content (most commonly the end user who posts a news article or a web page) is responsible not only for ensuring that such articles are legal, but also suitable for the intended audience
ISPA firmly believes ISPs should not have the power of judge and jury over the legality, suitability or appropriateness of the content that is contained on their servers. ISPs are not qualified, sufficiently authorised or resourced to decide on the legality of all the material on the Internet. Whilst ISPs take swift action when they are aware of child pornography on their servers - because it is illegal "full stop" both in the UK and throughout the world - not all sorts of material are as easily identifiable as illegal such as instances of libel or defamation.
- ends -
Notes to Editors
The views expressed in this release are those of the Internet Services Providers' Association (ISPA UK) and do not necessarily reflect the corporate policies of the individual companies that are members of the Association.
For further information, please contact the ISPA press office.
Email: pressoffice@ispa.org.uk Tel: 0207 609 1907
The Internet Services Providers' Association (ISPA) was established in 1995 as a trade association to represent Internet Services Providers (ISPs) in the UK. ISPA promotes competition, self-regulation and the development of the Internet industry. For a list of members or other information about ISPA, please consult the website: http://www.ispa.org.uk
ISPA holds permanent membership of the Internet Watch Foundation, the Internet Crime Forum, the Home Office Task Force on Child Protection on the Internet, the DfES Safety Strategy Group, EURIM, the Parliamentary IT Committee (PITCOM), the Association of Communication Service Providers, the Oftel Internet Forum, and international organisations such as EuroISPA, and the World ISP Forum.