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Friday, 17 March 2006


ISPSs - do they carry a heavy burden?

The IPKat thanks his friend George Godar (partner and head of patents at DLA Piper Rudnick Gray Cary) for drawing his attention to Bunt v Tilley and others, a High Court defamation action posted on BAILII on 10 February 2006. Although "only" a defamation case, and therefore of no possible to IP lawyers ;-),it interprets some of the Internet Service Provider (ISP) safe harbour provisions of the Electronic Commerce (EC Directive) Regulations 2002, which are of great significance to copyright law since they determine when and in what circumstances an ISP can incur liability in respect of naughty content put on the web by its subscribers or users.

George's take on this case is as follows:

"1. as a matter of law, an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law.

2. for defamation purposes, the ISP's position is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence.

3 ISPs such as AOL, Tiscali and BT (three of the defendants in this action) are within the definition of "information society service" in the E-Commerce Directive.

4 automatic caching, as used by most ISPs, is protected by Regs 17 and 18 of the Electronic Commerce (EC Directive) Regulations 2002 (the Regs which set out the circumstances in which internet intermediaries should be held accountable for material which is hosted, cached, or carried by them but which they did not create).

5 an ISP which hosts eg a Usenet newsgroup cannot rely on Regs 17 and 18, but can rely on Regs 19 and 22 where an inadequate notice was provided by the claimant. In particular, the nature of the unlawful activity complained of must be adequately specified in any written notification from the claimant to the ISP (including why possible available defences which might make the statements complained of are not available - suggesting that the notice might have to include references to the strengths and weaknesses of those defences in order to fix the ISP with actual knowledge under the terms of Reg 22)".
The IPKat is grateful for George's take. He adds, take a look at para.10 of the judgment of Mr Justice Eady [historical footnote: Eady J is the oldest judge in the world. On the right is a famous sketch of him as he looked in 1902. On the left is a photo of what he looks like now that he has taken a course of Botox and buys his shirts from Marks & Spencer].

Anyway, Eady J says:

"My attention was drawn to certain passages in Dr Matthew Collins' work The Law of Defamation and the Internet (2nd edn, 2005) at paras. 15.38 and 15.43:

"There is ... a line of authority arising out of intellectual property cases in the United Kingdom to the effect that persons who procure the commission of torts are liable jointly and severally with the principal tortfeasor, while persons who merely facilitate the commission of such torts are not exposed to liability. It is possible that this line of authority might apply to defamation law. If so, telephone carriers might be mere facilitators of defamatory telephone calls, and so not capable of being held liable as publishers.

There is ... an argument that telephone carriers are mere 'facilitators' of telephone calls and therefore cannot be responsible for the publication of defamatory telephone calls. If that view is correct, and there is a distinction between 'publishers' and 'mere facilitators', then there is a strong argument that mere conduit Internet intermediaries are mere facilitators of Internet publications passing through their computer systems, and therefore not responsible for publishing them" .

The line of authority to which Dr Collins was referring was exemplified in such cases as CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013, 1058 (infringement of copyright); PLG Research Limited and Ardon International Ltd [1993] FSR 197, 238-9 (infringement of patent); MCA Records Inc v Charly Records Ltd [2002] EMLR 1 (infringement of copyright and trade mark); Douglas v Hello! Ltd [2003] EMLR 29 at [70] (breach of confidence: liability as a joint tortfeasor will only be imposed where the claimant proves 'concerted action to a common end'). There is no instance so far in which that line of authority has been extended into the field of defamation although, as Dr Collins points out, in MCA Records Inc v Charly Records Ltd Chadwick LJ observed (at p27) that the line of authority applied "at feast in the field of intellectual property" (emphasis added).

IPKat review of Dr Collins' book, published by Oxford University Press, here

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