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Digital Britain Report

ISP liability and the Digital Britain Report

February 7, 2009

Traditionally, ISPs have had limited liability under the laws of England and Wales. The are not liable for defamatory comments or IP infringements including illegal downloading unless they are given notice that one of their users is committing illegal activities or one of their sites had infringing content.

Recently, there has been a lot of controversy about tracing individuals through IP addresses and what sort of help the ISP should provide to trace the individual. While tracing computers is possible, it is less easy to trace users. So if a defamer has used a public computer and an email with false registration details it can be difficult to find out who was the culprit.

Another problem on the internet is that the individual making the defamatory comment may have no assets and not be worth suing. If the defamer is located in another country it would be a very expensive task to bring litigation proceedings abroad. This makes the ISP itself a better target for attack. There have been several areas where ISPs are getting more involved: Online defamation cases and copyright infringement occurring through downloading.

One main difference between internet defamation cases and more traditional forms is in the identity of the publisher. Defamatory comments in the press will generally be the responsibility of large publications. On the internet the publisher could be virtually anybody and could be anywhere around the world. Publication can occur in a variety of places such as on blogs, websites, emails, social networking sites and message boards. Increasingly defamation on the web calls for non contentious legal skills, and a good understanding of the internet and what is or is not possible in terms of removing objectionable posts.
There has been some talk recently on whether ISPs should have increased liability in the UK. Last week BERR and the Department for Culture, Media and Sport released the Digital Britain Interim Report.  The final report is due out later this spring. One of the most notable issues addressed in the report is illegal downloading and peer to peer sharing. There is a definite desire to place more of an onus on ISPs to collect information and take responsibility for matters like illegal downloading. It is felt they could place technological measures in place to prevent many of the problems that now exist. So, it will be interesting to see how this develops.

The current regulations place responsibility on ISPs once they receive a take down notice, or similar notification that there is something illegal going on. If they then refuse to take down the offending material, they become liable. That is why they will bend over backwards to comply when they receive notices. An example is the Usmanov case when the lawyers acting for the well-known Ukrainian billionaire owner of the Arsenal Football Club sent a cease and desist letter to a blogger Murray (who had written on the alleged criminal activities of Usmanov in his rise to power) as reported here.  The letter was also sent to the host of his website, Fasthost. Fasthost contacted the site administrator of Murray’s blog who refused to take the site down. Due to this refusal Fasthost pulled the plug on all of the administrator’s sites which included the website of Boris Johnson and the website of the London Bach Society even though neither website had any content on this matter. The problem with this approach is evident from the fact that the content is back up online with a different service provider.

The question is what responsibility is it appropriate to place on ISPs?  Is it feasible to make them responsible for illegal downloading while leaving the rest of the laws as they now are?   ISPs will say that the biggest problem is how they can be expected to know what each of their users is doing at all times. To make them responsible would make their business uneconomical and raise some serious privacy issues.

The UK government does not seem to know what to do about this either. If the Digital Britain Report is any indicator of what will happen then they are going to have a lot more liability for certain matters – such as illegal downloading.

Another significant piece of news this week is that David Lammy, the minister for Intellectual Property, Higher Education and Skills gave an interview to the Times where he likened illegal downloading to stealing soap out of a hotel room which was commented upon here by the IPKat.  The Minister said that any plans to force ISPs to cut off internet access to serial down loaders will be stalled. His comments seem to indicate that ISPs will not be forced to follow new rules and there might be an about face in overall policy on illegal downloading.

Following his comments should we take it that copyright laws are going to be completely overhauled as well?