Internet service providers (ISPs) are reporting rapidly increasing incidences of take-down notices for copyright infringement material, in contrast to a diminishing number of requests to remove defamatory material from sites they host.
As the burden on ISPs increases, it is becoming increasingly difficult for them to fairly deal with cases where people or companies feel their copyright has been infringed, or where they feel they have been defamed. While ISPs have a duty to remove offending material, they say that because they also have a duty to their customers, the current situation in which they have to act as judge and jury is untenable.
Complaints related to copyright infringement now account for 54 percent of take-down notices issued to ISPs based in the UK, according to a preliminary survey by the UK's ISP Association (ISPA), which is being conducted as part of a bid to rationalise the process of removing possibly illegal material. Twenty-seven percent of take-down notices are related to defamation complaints.
ISPA is gathering the data to illustrate the growing problem with take-down notices in a bid to persuade the government to publish a code of practice that, it says, should effectively remove liability from ISPs. The work is being done by ISPA's sub-group on content liability. The sub-group spokesman Mark Gracey, who is also legal liaison manager at ISP Thus, said take-down notices are a huge burden, with each case costing between £50 and £1,000 to deal with.
"Anybody can put us on notice of take-down," said Gracey. "There is no standardisation of processes -- a ten-year-old child can do this by writing the notice on the back of a cigarette packet." At Thus, said Gracey, the number of take-down notices for alleged copyright infringement is "going through the roof."
But removing content -- whether because it is said to infringe copyright, defame somebody, be criminally racist or break laws such as the Obscene Publications Act, is not a simple process and can lay ISPs open to legal action.
"ISPs are rarely aware of the full facts of the case and could easily make a wrong decision," said Gracey. "ISPs are at risk of liability from the person giving notice and from their customers. Do we take down the content when asked by a complainant and if so, should we put it back when our customer who posted the content in the first place tells us to? We are the piggy in the middle. We are playing judge and jury."
ISPA is trying to encourage complainants to make contact with the person or organisation who posted the material in question, rather than the ISP. But there is an urgent need for a code of practice that would create a standard form for take-down notices and dictate who can issue them, sad Gracey. It should also address the issue of how and when content should be put back on the Internet if the ISP's customer is able to prove that it does not infringe any laws. "Rights holders do have rights, but we also have to consider the rights of our customers. Infringements are not always what they appear to be."
"There is also the notion of a safe harbour for ISPs, to provide freedom from liability," said Gracey. "That's what we need the government for." However, he said, any code of practice would take some drafting. "It has to be fair to ISPs, to their customers and to the complainants."
Gracey said the DTI does appear to be receptive to the idea, "but the government is still saying it is no convinced there is sufficient reason to go ahead." ISPA hopes to use the results of its survey to get across the fact that there is a big problem, and ISPs interested in filling out the survey or contributing their own horror stories should contact ISPA.
Gracey knows the problems as well as anybody. Thus owns ISP Demon, which in 1999 lost a defamation case brought by scientist Laurence Godfrey over comments posted on a Usenet conference hosted by Demon.
In that case the judge ruled that Demon's defence of innocent distribution was untenable because the ISP had been informed about defamatory messages.