AOL's immunity from child porn to set UK precedent

Attempts to crack down on Net paedophiles become embroiled in liability arguments

A Supreme Court's decision to shield America Online from responsibility for the sale of child pornography in its chatrooms, could soon be imitated by European legislation that is expected to exempt Internet Service Providers (ISP's) from liability for the content that they host.

The Florida state Supreme Court ruled Thursday that the Communications and Decency Act (CDA) gives ISP's immunity from prosecution for illegal information disseminated by users. An EU directive, called the Horizontal Selling Directive, due to be finalised shortly, is likely to follow the same path, doing little more than reinforcing the current "notice and take down" policy adopted by most British ISP's.

"In principle, America has gone much further than the UK in exempting ISP's from liability for offending material carried on their servers," said Robin Bynoe, partner at city law firm Charles Russel.

In a four to three decision by a panel of judges, the lawsuit filed by a Florida woman whose 11-year-old son appeared in a lewd videotape sold by one AOL user to another, was thrown out. The mother had alleged that AOL was violating Florida criminal law by distributing pornography, and was negligent for not knowing one of its subscribers was a seller of child pornography.

Richard Lee Russel, a schoolteacher from West Palm Beach suburb, admitted to using AOL for meeting other paedophiles, and pleaded guilty to federal charges for the trading of child pornography in 1995. He is currently serving a 14-year prison sentence.

The American CDA contains a provision setting out "common carriage", whereby an ISP is deemed a provider of content and therefore not liable for material posted by its users. Within the UK, there is currently no specific legislation to deal with an ISPs responsibility for pornography appearing on its servers.

"In Europe, you can notify a service provider if they are hosting illegal content and request them to take it down, but they are not liable to damages," said Bynoe. Under an Amendment to the 1996 Defamation Act intended to protect online publishers, section two protects content providers from liability for carrying offending material that they are unaware of. The high-profile Demon Internet versus Laurence Godfrey case last March set a precedent for the problem of ISPs hosting defamatory content. "In the Demon analogy, the ISP only became libellous once it knew about the content -- as it happened they didn't have time to sort things out", Bynoe said.

In the Florida case, AOL was accused of not blocking Russel from its service once complaints had been made. Matt Peacock, director of corporate communications for AOL Europe said, "a great deal happens, but it usually goes off into a sphere where we cannot communicate what is happening to a member. How does a complainant know that the police aren't on the case gathering material."

British telco Thus, owner of Demon Internet, announced last month its decision to remove known child pornography newsgroups from its servers, amid growing concerns that the Internet is teeming with paedophiles. One week into its moral crusade, it was found to have failed in its pledge, with two known paedophile groups still available on its servers.

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