ISPs caught up in Internet babies furore

Adoption scandal brings us back to age-old question: Can ISPs be held responsible for all content on their servers?

ISPs have become the latest victims of the Internet adoption row, with the government telling providers they must get rid of illegal adoption adverts.

The row which has seen twin girls "bought" over the Internet twice by two sets of prospective parents and taken temporarily into the care of local authorities in Wales, has caused a national uproar and led the government to rush through legislation on the rules governing foreign adoption.

As part of this push health minister John Hutton has written to ISPs stating that if someone informs them about illegal adoption adverts they must take the content down. "If they are aware of illegal advertisements we would expect them to remove [them]," says a spokeswoman for the Department of Health. Only local authorities are legally entitled in the UK to advertise adoption services.

ISPs have long argued that they should not be held responsible for content carried on their servers, claiming that they are distributors rather than publishers. In a precedent-setting libel action between Demon Internet and Dr Laurence Godfrey, Judge Moreland ruled that if notified of content, ISPs should be held liable. The Demon case caused a furore and ended in defeat for the ISP, which was forced to pay Mr Godfrey damages.

Secretary general of ISPA (Internet Service Providers' Association) Nicholas Lansman believes it is wrong that ISPs should act as judge and jury in such cases. "The law doesn't define who should be allowed to give notice and it doesn't define which Web sites. Are ISPs expected to block Web sites outside of the UK?" he asks.

Director of the Campaign Against Censorship of the Internet Malcolm Hutty describes the latest move from the Department of Health as "unworkable". "It is a kneejerk political reaction to understandable concern about this case," he says. "How in the world is an ISP supposed to make that kind of judgement and why should they be expected to?" he asks.

Hutty believes it is a case of passing the buck. "Frankly the Department of Health is trying to duck responsibility for ensuring adoption rules in the UK area adequate to protect children. They are failing in that responsibility and taking it out on ISPs."

ISPA chairperson and general counsel to AOL Clare Gilbert believes that to lay the blame on ISPs is to miss the point. "We need to separate the crime from the medium. To concentrate on the Internet is to miss the wider picture," she says.

Gilbert calls for clarification on who should be allowed to tell ISPs to take content down and points out that only a court of law has the authority to decide what is legal and illegal. Local authorities should also take responsibility. "It is the authorities that should be pursuing adoption rackets and then they can come to us," she says.

Last week prime minister Tony Blair described the Internet adoption case as "deplorable" but Robin Bynoe, partner at law firm Charles Russell, believes people are getting a bit carried away. "There is a lot of demonising about this case. People keep referring to it as an Internet adoption case but in fact it is an adoption case that happened to be made quicker and faster by the Internet," he says.

"People could get hold of foreign print magazines which carry adverts for adoption. It is just quicker and easier on the Internet to make contact with a dodgy Californian adoption agent but that is a fact of life and we have to deal with it."

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