General

European Law is planning to give limited reassurance to ISPs and web publishers about liability for web content.


The new directive which should be incorporated into UK law by 16 January 2002, aims to create common rules throughout Europe for formation of E-contracts and internet advertising. The rules also set out the basic premise that those who host or transmit material electronically should not be liable for the content of the material about which they know nothing.


The UK and other countries in the European Union have until 16 January 2002 to implement the E-Commerce Directive. The UK Government has launched a public consultation of the Directive and Responses should be filed by Spring 2001.



A person responsible for the electronic transmission of material in a communication network, (in other words, an e-mail provider, a service provider of bulletins boards and chatrooms) will not be liable for the content of that material, provided that he does not:



Initiate the transmission


Select the receiver of the transmission


Select or modify the information transmitted.


The only exception to this is that an injunction can be granted against the provider to stop continued distribution of the offending material.



The person who hosts or stores information for a customer (in other words, a website hoster) is similarly not liable for its contents, provided that the host provider has no knowledge of the illegality of the material, and upon being made aware of its illegal nature acts i.e expeditiously to remove or disable access to the information.



There is no obligation on information transmitters or storage providers to check the contents of the information that they process.


The Effect of the New Rules


Mere transmission of illegal material without knowledge will no longer expose you to liability. However, once notified, you must take immediate steps to remove the offending the material.


This will include material that is defamatory, that infringes another’s copyright, infringes an individual’s right to privacy (under the Human Rights Act) as well as all the other potential civil areas of claim.


This would be a major change in the law in the UK since, as the recent judgment of Godfrey -v- Demon Internet demonstrated, ISPs can be liable for defamatory content in chatrooms and on bulletin boards once they have been told about the offending content.


However, a complaint about content brings with it the risk that if you remove content, you may in breach of the right of free expression of the person who placed the content there. If you act quickly to remove content once there is a complaint, this could breach the Human Rights Act. Closure of the site has to be a "proportionate" reaction. This does leave uncertainty.


If bulletin boards and news group providers want to remove material they should ensure that their user conditions reserve a wide discretion to the host to remove the material. This discretion should not be limited to material that is the subject of complaint.


It should be remembered that the controversial Regulation of Investigatory Powers Act 2000 gives various public authorities the right to intercept electronic communications. Service Providers should ensure that they retain the technical means to facilitate an inquiry under the Regulation of Investigatory Powers Act. Therefore, by all means remove the material but do not delete it.


Practical Steps to Take Now



Have a clear link of reporting for complaints so contentious content can be suspended quickly.



Check the terms under which users transmit or post content on or through your service. Make sure that you have the right to suspend the transmission of or access to the content while any complaint is investigated or if you conclude that content is questionable.



Make sure the user conditions of bulletin boards, chatrooms and news groups contain a provision that reserves a wide discretion to remove content



Make sure that once a decision to suspend content is made, you can act on that decision quickly; you may be asked to demonstrate that you acted quickly in removing information and it will help if you have a clear, written procedure that was followed.



These steps apply equally to ISPs and those whose operation of public/customer spaces on their own website is not the main business but is a marketing tool e.g. customer feed back spaces.






For further information, please contact:

Catrin Turner – 020 7539 7210
catrin.turner@h2o-law.com

Paul Fox– 020-7539 7244
paul.fox@h20-law.co.uk

Jennifer Holroyd – 020 7539 7222
jennifer.holroyd@h2o-law.com

© Copyright 2001 by Dotfactor.com

Top of Page