When Do Internet Service Providers Have Protection From Liability?

1. Introduction

Since its first appearance,{ظهور ماذا} Internet has managed to achieve a continuous growth in countries worldwide; legislators had to identify the legal framework that would be most appropriate for protecting the social and personal values, rights and wealth. Emphasis has been given on the illegal content of websites – mostly due to the expansion of the phenomenon. In fact, it has been proved, that many organizations, which virtual world services, [1] have been unable to prevent the publication of such information through the Internet – referring to the involvement of these organizations in the hosting or the transmission of such information. [2] In practice, the above organizations {ما هي هذه المنظمات} cannot be held responsible for the illegal content that they host or they transmit; the key term for the use of the above benefit is that these organizations are characterized as Internet Service Providers (ISPs). [3] In case that these organizations do not meet the above requirement, they cannot ask for the exception from liability for the content they host or they transfer. [4] The above issue is explored in this paper; emphasis is given on the European law establishing the protection of ISPs from liability for the information they host or they transmit; reference is also made to the UK and the USA case law that has been developed in the specific field. The Directive 2000/31/EC is set under examination and evaluation; it is concluded that the existing European law regulating the protection of ISPs from the liability for the content they host or they transmit need to be further improved; the potentials for broad interpretation of its rules has been found to be partially negative for the resolution of disputes arising in regard to the study’s main issue.

2. European Law on the protection of Internet Service Providers from liability for content they transport or host – European, UK and US case law

The issue of responsibility of ISPs for the information they host/ transmit has been resulted because of the expansion of Internet – both in terms of commerce, i.e. of the use of Internet for the development of commercial transaction and in terms of the characteristics of the users, i.e. of the use of Internet by people of all ages, even by children. Under these terms, the introduction of legislation referring to the creation and management of this content was quite necessary. At this point, the criteria on which the characterization of content as illegal would be based needed to be set; in accordance with Kleinschmidt (2010) the content published in the Internet is usually considered as illegal when it has one of the following forms: ‘pornography without age verification, child pornography, hate speech, or extreme violence’ [5] . At this point, it should be made clear that the participation of an ISP in the publication of illegal content can set the ISP under the risk of two different forms of liability: a) liability for the damages caused to one or more of its users – because of the illegal content, b) liability for the damaged caused to a third party – being offended from the illegal content in the publication of which in the Internet the specific ISP has taken part – either by hosting or transmitting the content involved. [6]

Under normal conditions, ISPs would be held liable for the following reasons: a) for hosting or transmitting illegal content, b) for breaching the copyright laws in regard to the products of art (speech, song, painting and so on); the activity of the second category would be related with that of the first category since the material acquired by violating the copyright laws can be considered as illegal. [7] In fact, in many cases ISP are sued by copyright owners for having violating the copyright laws – even if in most of these cases such allegation against the ISPs is not made acceptable; [8] however, the outcome of such claim is differentiated in accordance with the copyright laws applied on each state.

The development of the European law regarding the protection of ISPs from liability for the content they host/ transmit has been considered as necessary in order to face the following problem: the claims for compensation against ISPs for the violation of copyright laws have been increased; therefore, a legislative framework protecting ISPs for unjustifiable claims – in the context described below – was necessary. [9]

One of the most critical issues regarding the liability of Internet Service Providers (ISPs) is its correlation with the place where each ISP is established – meaning the centre of its activities. The establishment of an ISP in a particular place is the criterion on which the relationship between the ISP and the national (local) law is decided. For instance, for an ISP located in UK, the British law will be primarily applicable – along with the European law, as appropriate – on all ISP’s activities. [10] In the context of the European law, the activities of ISP’s are controlled through the Directive 2000/31/EC – known also as the Electronic Commerce Directive. [11] In accordance with the above Directive, ISP’s are considered – under certain circumstances – as not liable for the information that they host or the content they transmit; [12] the terms under which such protection is provided to ISPs are described in the 2000/31/EC Directive. A primary requirement is set regarding the provision of such protection to ISPs across EU: ISPs need to be categorized as follows: those ISPs which host information and those which transmit information. [13] Another – similar – interpretation of the categories of ISPs, protecting from liability in the context of the 2000/31/EC Directive, is given through the study of Lehr & Pupillo (2009); in accordance with the above researchers, the 2000/31/EC Directive offers protection from liability to ISP’s being engaged in the following activities: ‘a) mere conduit, b) caching and c) hosting’. [14] Furthermore it is made clear that in the first two cases, the exception from liability is absolute where in the third case it is required that the ISP is not aware of the illegal content it hosts. [15]

In any case, the existence of legal rules for the exception of ISPs from liability regarding the information they host or they transfer could be regarded as justified taking into consideration the level at which these firms are vulnerable towards third parties which may wish to harm these firms’ activities. [16]

It seems that the reason for which European legislators have decided to exempt ISPs from liability for the information they host or they transmit is the fact that the above organizations do not, actually, manage the relevant pieces of information; [17] rather, they simply provide the potential for the publication of these pieces of information in the WWW. The above view is further verified by the fact that ISPs do not have a direct economic benefit from the information they host/ transmit; they simply have the right to ask for compensation for the publication of the relevant pieces of information. [18] Furthermore, ISPs highly contribute to the identification of illegal content in the WWW supporting the authorities to appropriate prevent or punish such activities – referring to the creators of the illegal content. [19] On the other hand, Clark et al. (2010) note that the reason that ISPs are more likely to be sued for the publication in the Internet of illegal content is the fact that ‘ISPs are easier to be located’ [20] – compared to the creators of the illegal content.

In accordance with the rules of the 2000/31/EC Directive, ISPs cannot be held liable for the illegal content they host/ transmit – in the context described above. However, in the case of the copyright infringement, the right of ISPs to ask for such protection is not clear. This problem can be identified, for instance, in the decisions developed by the British courts when such cases are brought before them. The above issue is highlighted in the study of Osborne (2008) where reference is made to the potential liability of ISPs for the content of sites which are based on ‘user generated content (UGC)’; [21] it is noted that currently, many of the owners of these sites claim that they are Internet Service Providers (ISPs) in order to be protected from liability for the content of their site. [22] In accordance with Osborne the above claim could be characterized as justifiable and valid at the level that the 2000/31/EC does not introduce differentiations in regard to the liability of the owners of these sites [23] – at least such argument can be acceptable for as long the European Commission avoids developing different view on the treatment of the owners of these sites by the law. The issue of the responsibility of the owners of UGC – as set above – is particularly important taking into consideration the expansion of the sites of this type; in accordance with Holmes and Ganley (2007) the beginning of the radical development of the UGC sites can be located in 2006; today, You Tube is considered as the most significant example of site of this type; prestigious search engines, like Google, have also included such features. [24] Therefore, the establishment of a clear decision in regarding the responsibility of the owners of these sites is emergent; this issue should be taken into consideration when the reform of the 2000/31/EC would be attempted.

In practice, the effectiveness of the 2000/31/ EC Directive has been criticized, mostly because of the potentials for broad interpretation of its rules. This fact is highlighted in the study of Smith (2009) where reference is made to the specific problem: [25] currently, the content hosted/ transmitted by ISPs can have various forms; it is not clear under which terms ISPs cannot be held liable for hosting/ transmitting illegal content. This problem was identified – quite early – by European legislators who decided to provide the following explanations regarding the potential use of the 2000/31/EC; in the 2003 Report of the European Commission – focusing on the above Directive – it is noted that the term illegal content for which protection is provided to ISPs can cover ‘not just websites but also bulletin boards or chartrooms’. [26]

It should be noted that the application of the 2000/31/EC Directive in practice has faced many difficulties – mostly because of the differentiations identified in the interpretation of the Directive’s provisions by the Courts of the member states. As a result, the publication of illegal content in the Internet is not effectively controlled. For this reason, legislators in the Member states have tried to develop alternative measures for preventing the publication of such content in the Internet; the most common measure of this type is the blocking of sites that include illegal content; however, these initiatives have been opposed using the argument that they are against the freedom of expression – as established in ‘the article 10 of the European Convention on Human Rights’. [27] It is clear that additional measures should be taken for expanding the application of the 2000/31/EC Directive – potentially through the introduction of rules, which will be applied supplementary to the above Directive. [28]