Internet Service Providers and Protection from Liability

“When do Internet Service Providers have protection from liability for content they transport or host, under European law? Should other commercial content providers also have such protections from liability? Support your answer with examples drawn from UK, European and US case law, UK and European legislation, and the consultation on revision of Directive 2000/31/EC”

Introduction:

In this paper we will seek to answer a lot of questions such as what extent the legal responsibility under ECD ‘Directive on electronic commerce for them comes into play, by looking on some of the issues of world renown that have been adjudicated, some examples drawn from UK, European and US case law, significance particularly the content of article 18 of the ECD, What are the legal relationship between the mediator in the relationship between P2P, is there a responsibility for the results of research and social networking is responsible for the operations that may be presented occur in cursing and as slander and libel? and whether a third party the contents of any liability of the provider of services and how the regulation of article 12 Directive 2000/31/EC on the Web sites Organized the retailing differences that may occur in illegal Selling, what is the legal status for the process of using digital communications, and many other surveys to process violations of copyright and the rights of the author.

Online intermediaries – ISPs, IAPs, ISSPs

Definition:

The legal liability of the ISPs (internet service providers) is a serious issues that are causing alarm in the world, because the world of network information was voluminous and the staggering number of IAPs (Internet Access Providers) ISSPs (information society services providers), ECD Articles 12-15 [1] for harmonization of liability of intermediaries through the interne is not limited only ISPs, but it includes ISSPs called in other places in the world by name, this concept comprehensive of the legal liability is not limited to Internet service providers but includes any ISSPs. In accordance with ECD, research web such as Google, Amazon are ISSPs. It should be noted that the community service information does not fall under the jurisdiction of ISSPs, such as TVs, the radio unless it is on the demand for the unit, with reference that ISSPs are the others commercial providers. [2]

Legal regimes for regulating online intermediary liability:

In the light of the proliferation of liability issues in early 1990s, ISPs were recognised of issues of responsibility for subject content in all parts of the world, coordinated and notified by each of the organizations of their limited liability, such as ECO and US DMCA. Therefore, the lack of effective legal or actual control controversy in and among Internet Service Providers because they can censor what is published and examine all of the content that could cost them more money than estimated, or may result in invasion of privacy and confidentiality of information society. [3]

In the case of “Yahoo v France 2000″ [4] , which focused on a site selling Nazi memorabilia to people from France, the court ruled that that US should block access to pages which contain that material where the verdict was instructed blocked access to Yahoo the verdict instructed that access to Yahoo be blocked This decision raised questions about the classification of goods offered for sale and how it was impossible for Yahoo! US to block it.

It was agreed that the online intermediary service providers may not be able to process the filtering of unwanted material and, ISPs and hosts’ if they host illegal content from the other parties, are often not held accountable, or do not have contractual responsibility for it’. [5] ISPs, like “Messenger”, are not content providers, therefore, they should not have legal liability [6] . However, the US DMCA successfully prevented immunity for ISPs, with respect to hosting illegal content with their knowledge. This was a serious blow against ISPs. As a result of this unjust resolution with regard to ISPs, there was disagreement that by these actions ISPs do not bear the burden of responsibility for the underlying content. Such content is authored by others and, because European society depends on ISPs, this may be economically devastating for them. [7] The desired outcome of the US decision had been to stimulate ISPs to play a leading role in cleaning up the Internet and disposing of illegal content, such as libel, slander and sexual crimes against children, thereby keeping the Internet a safe place and a hotbed of economic activity. The direction that was agreed upon by the US DMCA and ECD, was that ISPs should not be responsible for content that has been authored by third parties, if they are diligent in the process of detecting and removing such content [8] .

Limitation of Liability:

The immunity against liability for a temporary period with regard to the actual knowledge of harmful content and its immediate removal or disabling, according to the ECD which deals with all content of intellectual property on the criminal side, contrary to the U.S DMCA which just deals with copyright. Articles 12 and 13 of the ECD rules are very similar to the UK ECD Regulations 17 and 18. Internet service providers benefit, partly, from some of the special protection they are dealing with on a contractual basis, thereby providing some protection for customers. There must be some properties, (Recital 18 ECD) such that this service must be at a distance and at the request of the individual recipient, and that it is through electronic means. [9]

Third party content

The reference to the importance of third party content may lead to the development of the legal liability of intermediaries. This is an aspect which is very important to them, such as content that may include abuse of the law and content that may represent copyright business models, and therefore, these illegal acts constitute a blow to economic life. The relationship between the three parties is subject to the responsibility for ISPs liability. This leads to many legal problems in cyberspace, and this is what catches the attention of lawyers. They are concerned about the complexities that may afflict them when it comes to proving the legality of the situation. [10] The reason for this is that US law focuses on the example of the case “Cubby CompuServe” [11] , where before that there was no contractual relationship by a third party other than a contractual relationship established by ISPs.

There is a differentiation between short-term or cross-tenure, and long-term tenure liability, because liability should only relate to long-term tenure. This may have been due to a third party hosting content. It may be that many Internet users are unaware that the material that they will share is in violation of copyright and publishing laws. This prompts some of the sites providing this type of service to evade liability. Despite this, there is a legal liability with regard to illegal data as a result of regular knowledge. [12]

Hosting, notice and take down

Article 14 states that hosting [13] an information society service shall have legal liability if, “(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”

With reference to Articles 14 and 512, the DMCA stipulated that there is no responsibility on the part of ISSPs to host information that is stored if they have no actual knowledge of illegal content or information, and are not aware of the incident. A clear example of this is, “Playboy Enterprises Inc. v. Frena”. [14] In 1993, Frena was sued by BBS in the RTC court for violating copyright. Although Frena did not take a copy of some of the images belonging to the site, with a blur her Brand, where there was not any proof that Frena had known about the existence of such images (170 estimated in 50 magazines) and that these were owned by the Playboy site. The founder removed, expeditiously, all illegal content, after he found out the true situation (actual knowledge). Therefore, the court was convinced that Frena did not bear any liability, because once he knew about the illegal content, he had them removed, according to (512) DMCA. [15]

According to Article 15 of ECD, the authorities do not have any right to require ISSPs to do anything regarding general monitoring, other than taking into account regular diligence. Thus, it is clear from Articles 14 and 15 of the ECD, that there is no actual responsibility for the hosting content, unless there was actual knowledge proven. [16]

The differences in liability between Host and Publisher

We must distinguish between Host and Publisher. According to Europe to avoid ECD roles, by classified according to the roles performed, that means the ‘publisher’ not an ‘intermediary’ by referencing the issue [17] , In “French v. MySpace 2000″ [18] , French sued MySpace, but paradoxically, they wanted to sue him on the grounds that he is a publisher and not a host of French cartoons in France. He did not own the copyright in accordance with French law. However, MySpace did not benefit from hosting immunity in the Digital Economy, because they get their profits from advertising and from members’.subscriptions.

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Defamation

The subject of defamation is a widespread controversy in terms of the responsibility of internet intermediaries, when these cases are carried out in a systematic way in the online world. Many Internet users exchange insults and are aggressive across a number of Social Networks. Internet communication The nearest to say about the written text and clear this speech brought in chat rooms (IM) via social networking sites such as Facebook and thus is not limited the fields of trade and companies [19] , for example, if you re-send or forward a defamatory message, the operation that has taken place is irreversible. This is a clear picture in countries that apply the law of libel and slander, that the party which he re-transmitted or re-routed it is equally responsible as the original publisher. [20] In contrast, in some legal systems (in accordance with English law) cannot be considered as a person who is the (publisher), because, in such a case, it is only the designated recipient that is involved and there is no connection to the public. [21]

According to English law, the duration of the legal responsibility of the publications is three years, but it may be renewed every time the item is read on the web. However this law carries the prejudice of human rights and violates the rules of freedom of speech on the Internet. [22] Therefore, this makes much more noose ‘this acts as a severe restriction newspapers online.

Substantive Online Defamation Law

Under the law of the United States and under English law, the author in the existing process of publishing defamatory comments shall be legally responsible for this, not the ISP or the host, if they make little editorial control to investige the content they already have “Cubby, Inc. v. CompuServe Inc.” [23] In this case, the court ruled that even though CompuServe is just a ‘server’ which makes profits from the publication and from membership, there was no editorial control to check on, and to examine, such publications that contained the defamatory statements. The liability did not carried on CompuServe was not verified of content. The complaint was rejected because there was no actual knowledge of the contents, which was the basis of the slander and defamation lawsuit. [24] In this regard, we should ask the following question. How would we deal with freedom of expression on the internet if it is subject to the law of defamation?

The legal liability may be established with regard to blogging via the Internet, such as material which has been suspended on social networking sites such as Facebook. This is because it is compatible with the formalities of what is published in the traditional press. [25]

Copyright liability and P2P intermediaries (Peer to Peer)

One of the issues that has been discussed through DMCA, but undefined in ECD or the UK Regulations is the responsibility for linking that reference to Article 14 of the ECD. It requires a host in order to prove the legal liability if it is just ‘hosting’, therefore a ‘hyperlink’ [26] , in accordance with this Article, does not involve any legal liability. However, there are a number of states that have chosen to create the linking of ‘hyperlink’ and legal liability immunity, in spite of Article 21(2) of the ECD to linking liability on P2P intermediaries. [27] Therefore, the alignment and harmony with other legal systems such as the ECD and the DMCA is thought to be the best solution to reduce business risk and responsibility that is linked to legal liability with the mediator in the future.

There are many sites which provide a space for the exchange of information or P2P data. These have been involved in a fight with the authorities concerned copyright protection. These providers are “evil intermediaries” according to comments in the case of MGM v Grokster [28] This site does not host the unauthorized files held by some users. However, Grokster is contributing to the identification of the parties who have these files. Grokster then starts the download these files as part of an illegal process through this site. These files are

known as ‘Torrents’ in some websites. Where you can take an advantages from sites such as Google and Yahoo to find out the parties files, which known as ‘BitTorrent’ furthermore, downloading these files don’t take time with an easy way. Consequently when you start searching on the internet just select the file you want to upload it. [29]

Financial obligations play a major role in such cases, because the websites (ISSPs) earn millions from the publication of commercials or hosting these links via in their site such as ‘the Pirate Bay’ which the majority of the files being protected by copyright. This therefore constitutes an infringement of the work of such property, this is in accordance with ECD and the recognition of what wordpress in the Swedish law and offset rejection from DMCA, (Napster and Grokster) decisions. There have been attempts to find ways to distinguish ‘innocent’ hyperlinkers [30] in the UK court from those which are categorised as ‘evil’. However, they applied to ignore the wrongfulness which they provide ‘hyperlinkers’ and this may cause a collusion by ISSPs which is a blatant infringement of copyright law. [31]

Where did not believe that the intermediary is playing any role in the process of copying. Nevertheless, adding to, if the intermediary plays a part of authority connections, as hosts material and then copy them on CD or by using modern techniques, and then make these copies available at the request of the user, such an action involves a flagrant violation of copyright. In contrast, the presence of images in transit, even if found in a computer memory or with an intermediary, does not entail any liability in terms of the violation of copyright and publishing [32] , as happened in the case of Playboy “Religious Technology Center v. Netcom On-Line Communication Services” [33] .

The example shows the role of mediator in P2P to be a completely different issue, in that this site is hosted by the process of a central database of sites or links that contain the files for download. This reflects the wide difference in legal treatment, in that the first party is the host and the second party is the party who creates the database. In accordance with the fact that he is using this method to exchange files in a legal and non-infringing manner, therefore the court ruled in the case of “Napsler v. KaZaa” [34] that because Napster was hosting a central database, legal responsibility did not arise because there were not inciting unlawful behaviour and there was no legal justification for the establishment of legal responsibility, and they were therefore not infringing copyright. [35]

Pornography

Recently, ISPs have been going too far by hosting and disseminating child pornography, which involves the sexual abuse of children. Through this hosting they are collecting fees from the users or by publishing advertisements that generate a lot of money for some companies leading to a profit. Nevertheless, regionally, the European law has tried to spare ISPs from being subject to any liability for violations of its customers, if they are acting only as a ‘mere conduit ‘ of illegal materials. [36] The UK government proposes to block porn websites at ISPs level by organizing the contents by the users. [37]

Wikileaks liability

Despite the provision which was released innocently Julian Assange, the founder of the Wikileaks site, the U.S. Department of Justice is considering issuing charges for spying. [38]

In 28/11/2010, Wikileaks (ISSP) disclosed that they were starting to publish 25,1287 leaked diplomatic documents. However, this is not the first time that the insiders have leaked documents, in 1971; Assange published important documents in what is known as “Wikileaks vs. The Pentagon Papers” which talked about the war in Vietnam. As a result of this he was deported under the Nixon Administration. However, these allegations did not involve the liability of the founder of the site. Therefore, the court acquitted the founder of the site, because what he did was subject to the freedom of expression under U.S. law and in other countries such as Sweden. This is a strong source of protection for publishers. [39]

In 2008, there was success in obtaining a court order condemning Wikileaks for infringement of copyright by preventing the domain gaining access to the site [40] . However, the case was dropped after the defence of the first amendment by the District Court. Wikileaks site has registered in Iceland to prevent it being liable for prosecution. It is subject to the law which provides legal protection against any liability.

Problems with the ECD regime

We should highlight the question of what is meant by “expeditious” according to Act 14-1(b) ECD. It should be removed within 24 hours or take ‘reasonable steps’. But, in addressing the special study by the author in 2005-2006 it must be removed by between 24 hours and 7 days, based on the content type and size. In an exception to that rule, the Terrorism Act 2006 requires that the term be not more than two days. [41] But from the point of view of current developments, this period is too long.

The question arises about whether some of the sites receive money by hosting content in violation of the law. This is because most ISPs generate huge profits from the participants and users of the web. Should they not at least be held liabile as a third party to using these methods to generate illicit money?

The legal dilemma is that eBay is a neutral intermediary, which makes the policy of liability non-effective in this regard. [42] With reference to the text of Article 14 ECD on “LVMH v eBay” [43] , eBay has to have “constructive knowledge” of the situation. This phrase may place a legal responsibility on eBay. Consequently, eBay was fined £31.5 million. [44] Therefore the proposed solution is to provide an advanced list of customers who are providing these illegal goods, in spite of the financial burden on these Sites. It is obtained against the material by the conclusion of the sales transactions through the use of ISSPs, because ultimately, they are business deals and not legal in the first place. Such companies make profits from the enforcement of these operations.

Dispute resolution TOTO

Disputes may become commercial dilemmas. Before that happens, we must seek legal advice to settle the dispute or the presence ability of compromise. One’s position in the dispute should be strengthened by evidence, such as copies of electronic documents. [45]

Litigation is the traditional solution to resolving a dispute that is inelastic and relatively inexpensive. Alternatively, arbitration, which is similar to litigation and the most common form of dispute resolution, can be very useful in resolving the dispute if the parties are subject to the same jurisdiction, as the problem lies in the binding of the parties to the arbitration decision. Alternative Dispute Resolution (ADR) is a third method of resolving disputes. It is considered more acceptable because the parties negotiate a solution. Parties resort to ADR because it is more cost-effective than litigation and arbitration and may avoid the interruption of commercial relations due to its cooperative/negotiated impetus instead of an adversarial stance. Recently Online Dispute Resolution has emerged as a new way of solving disputes. This method may be become more prevalent in the resolution of disputes in the future, as it is supported by laws of the United States, Europe, and the International Chamber of Commerce for its efficiency and its ease of use in cybersquatting cases. [46]

Conclusion

As we have seen, ISPs and ISSPs play an important role in the use of Internet services, in addition to the development of electronic commerce, despite the fact that ISPs have a qualified immunity as long as they do not play any role in the work of editing. However, there is a different legal systems differ regarding responsibility for third party content and other matters relating to copyright and defamation. The concern regards the lack of exposure to legal responsibility for the kind of violations mentioned above.

We mentioned that due the weakness in the harmonisation of case-law with regard to settling Internet-related claims, the question of content and responsibility has arisen as a source of concern for ISSPs. The concern is over exposure to legal liability for the kind of violations mentioned above: pornography, copyright, defamation, and all kinds of libel and slander.

Nevertheless, many organizations have tried to overcome this lack of coordination and have tried to harmonise the laws. However, there are still modern, decentralised protocols that are legally controversial.