chapter  6
14 Pages

Internet Service Providers and Liability

ByGavin Sutter

ISP liability for third party provided content The question of the appropriate level of responsibility to be placed upon the ISP in relation to content provided by third parties is complex, and largely influenced by policy. In the online world, it is often very difficult, sometimes impossible, to track down the source of unlawful material, such as child pornography, or a defamatory posting made to an online bulletin board. It logically follows that the party to whom those seeking the removal or deletion of such material should turn is the ISP responsible for its transmission or hosting. It does not automatically follow that the ISP should be held liable as a ‘co-conspirator’, equally responsible for the material as the original content provider, yet there may be circumstances in which it might be appropriate to impose some level of liability upon the ISP. Recent years have seen the emergence of a global consensus that ISPs should not be subject to absolute liability for the actions of the content provider. Typically, a qualified liability standard will be applied, with liability arising only where the ISP is in possession of sufficient knowledge (which may, according to the specific regime, be actual or constructive) of the unlawful conduct. In some instances it may be a significant factor that an ISP stands to gain from copying, possessing or transmitting the material. For instance, under the UK Obscene Publications legislation, mere possession of obscene material (excepting child pornography) is not an offence, whereas publication for gain or possession with intent to do so is a criminal act.1