ISPs hail 'common-sense' approach to regulation

Landmark ruling finally recognises that service providers have no control over third-party content
Written by Wendy McAuliffe, Contributor

British ISPs are breathing a sigh of relief following Demon Internet's successful challenge of the High Court injunction banning the publication of the new names and whereabouts of the James Bulger killers.

The landmark ruling protects ISPs from legal liability if customers break the injunction and reveal the new identities of the recently paroled Jon Venables and Robert Thompson, but it is also a legal acknowledgement of the technical limitations that prevent ISPs from vetting content before it is posted, say experts. Dame Elizabeth Butler-Sloss agreed that the original injunction was "inappropriate" for ISPs, setting an important precedent in the control of information appearing on the Net.

Yesterday morning Thus, Demon's parent company, returned to the courts to contest the recent injunction slapped on the British media, preventing them from publishing recent photos or the names of the boy's killers. The ISP that was stung in the Demon Internet versus Godfrey defamation case last June, was concerned that it could face a fine for libelous content unknowingly posted by customers.

Alterations to the amendment have been applauded by Internet analysts, who are pleased to finally see a "common sense" approach towards ISP liability. "It's absurd to suggest that ISPs can monitor all content as it passes through their servers," argued James Eibish, research manager at IDC. "Filters are useless, and the entire UK population would need to be employed in looking at the content hosted by one ISP, so it can't be vetted by humans," he added.

The EC Directive in electronic commerce -- soon to be enforced in British national law -- states that there is no obligation for ISPs to police content. Article 15 reads, "Member states shall not impose a general obligation on providers... to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity." The directive acknowledges that ISPs have no control over third party correspondence, and so cannot accept the same responsibilities of newspaper publishers.

Past debates have addressed whether ISPs are more like voice telco carriers such as BT, or print publishers -- the difference being that ISPs can alter material after the event of posting. "ISPs are a different animal from what the law is used to, but we have now got to the point where the courts are taking a realistic view of what ISPs can do," said Robin Bynoe, partner at city law from Charles Russell. "But the extent of the obligation to positively intervene needs to be further fleshed out."

Yesterday's ruling concluded that ISPs must take "all reasonable steps" to prevent the publication of banned material. But the injunction is unclear about an ISP's obligation to police its servers for harmful content after the event of posting. "Is it merely a negative obligation, or a positive obligation to do a certain amount of housekeeping?" questions Bynoe.

Cyberliberty advocate Yaman Akdeniz argues that this lack of clarity gives ISPs no complete immunity from prosecution. "It will depend upon what actual knowledge means and how best practice may be defined for taking all reasonable steps," said Akdeniz, director of Cyber-Rights and Cyber-Liberties.

See also: ZDNet UK's Net Crime News Section.

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