ict law - liability of isps - assign. 1

8/3/2019 ICT LAW - Liability of ISPs - Assign. 1

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LIABILITY OF INTERNET SERVICE PROVIDERS (ISPS);

SHOOTING THE MESSENGER

Submitted to Deidre English-Gosse of the University of Technology, Jamaica for

partial completion of the degree of Bachelor of Laws on the 7th

day of October 2011.

Student Name: Clifton Campbell

Student ID No.: 0904536

Course Name: Information and Communication Technology Law

Course Code: LLB3001

Lecturer/Tutor: Ms. Deidre English-Gosse

Assignment No.: 1


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Liabi l i ty of Internet Service Providers ( ISPs) ; Shoot ing the Messenger

1

Clifton D. Campbell (0904536)

CONTENTS

Acknowledgments............................................................................................................... 2Abstract ............................................................................................................................... 2Table of Cases ..................................................................................................................... 3Table of Statutes ................................................................................................................. 3

Introduction ......................................................................................................................... 4Scope of the Liability That will be examined ..................................................................... 4Liability in regard to copyright infringement ..................................................................... 5Liability in regard to trademark infringement .................................................................... 8Liability for Defamation ..................................................................................................... 9Liability of ISP for Child Pornography ............................................................................ 12Conclusion ........................................................................................................................ 13

References ......................................................................................................................... 15


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ACKNOWLEDGMENTS

I would like to express my sincerest thanks to a few persons who made the completion on this

assignment a possibility. Firstly, a big thank you to Samantha Gordon , a trusting and supporting

friend for her volunteering precious time to proofread this script and also for making valid

suggestions as to how to make it better. Thanks also to colleagues who have made suggestionsand contributed research material. Thanks to my loving family for their continued and invaluable

support.

ABSTRACT

Should Internet Service Providers (ISPs) be held liable for material they disseminate through

their servers? Discuss using decided cases.


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TABLE OF CASES

A&M Records, Inc. v. Napster, Inc 239 F.3d 1004, 1013 (9th Cir. 2001)

Bunt v Tilley and other [2007] 1 WLR 1243 ;[2006]EWHC 407 (QB)

Cubby Inc v CompuServe Inc (1991) 776 F Supp 135 Doe v. America Online718 So 2d 385 (4th Cir., 1999

Godfrey v Demon Internet Ltd[2001 ] QB 201

Hit Bit Software GmbH v AOL Bertelsmann Online GmbH & Co. KG [2001] E.C.D.R. 18

Lunney v Prodigy Services Co (1998) 250 AD 2d

Playboy Enterprises v Frena 839 F. Supp. 1552 (M.D. Fla. 1993)

Religious Technology Center v Netcom 901 F. Supp. 1519 (D. Colo. 1995)

SEGA v Maphia 30 U.S.P.Q. 2d 1921 (1994)

Zeran v. America Online, Inc.,129 F.3d 327, 330 (4th Cir. 1997).

TABLE OF STATUTES

United States

Communications Decency Act, 1995 (CDA) (US)

Digital Millennium Copyright Act (DCMA), 1998

United Kingdom

Protection of Children Act, 1978

Defamation Act 1996

Jamaica

Trade Marks Act 2001

Copyright Act, 1993 (Jamaica)

Defamation Act

Libel and Slander Act


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INTRODUCTION

Internet Service Providers commonly referred to ISPs, are in modern phraseology,

companies that allow users- both individuals and organizations - to access the internet in return

for a fee or charge.

1

In other words, they are the little colloquial road, which lead unto theinformation highway. In Jamaica According to the ICT paper as at 2011 there were 94 ISPs in

Jamaica (get the citation correct) Government of Jamaica; Information and Communication

Technology (ICT) Policy. Prepared by the IT Department Office of the PM. Published in March

2011. This is inclusive of Cable and Wireless Jamaica, J2 Ltd, Infochannel, Flow, inter alia.2

Some ISPs offer other services such as newsgroup, bulletin boards, chat rooms and other

downloading and uploading websites that often facilitates the commission of intellectual

property rights, defame characters as well as aid the commission of crimes such as child

pornography. When this is done, however, should they held liable for material they disseminate

that through their servers?

The contention is that the ISPs are merely the proverbial messengers or the colloquial

road that takes millions of organizations and individuals unto the information superhighway.

There are many who argue that as such they should escape liability for any crime or tort unless

they had knowledge or ought to have had knowledge of tort or crime. This would ensure that

there is a mental element, viz., mens rea involved. Unless this requirement is satisfied it is the

submission of the writer, which is supported by case law and statute from both United States of

America jurisdiction and the common law jurisdiction, that ISPs should not be liable activities of

their customers who breach copyright, trademark, post defamatory statements and post child

pornography, inter alia.

The aim of the author therefore is to illustrate to the audience, the current state of the law

through decided cases as well as to indicate the general direction that the law is likely to take in

the future.

SCOPE OF THE LIABILITY THAT WILL BE EXAMINED

This discourse will surround the liability of ISPs for the activities of their users and the

material they disseminate through their servers shall be examined under the following headings:

1What is an ISP? < http://www.wisegeek.com/what-is-an-isp.htm> accessed 04 October 20112Internet Service Providers in Jamaica


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1. liability in regards to copyright infringement;2. liability in regards to trademark infringement;3. liability in regards to defamation; and4. liability in regard s to Child Pornography.

LIABILITY IN REGARD TO COPYRIGHT INFRINGEMENT

Under the Copyright Act 1993 of Jamaica (and the relevant legislation in other

jurisdiction) owners of copyrighted material be it songs, poems, books, inter alia, have five

exclusive rights given to them. One of these rights is to prohibit others from reproducing, viz.,

copying their work, displaying work in public, or distributing it. Any party who therefore

infringe any of these rights is guilty of copyright infringement according to s 31 of Copyright

Act of Jamaica.3

Clearly, therefore, where ISPs can be found liable personally and no question

of liability arises in situations where there are directly involved in copying copyright protected

material. For example where an ISP in Jamaica copys a bestselling novel and place in on a its

bulletin board or website. That is primary copyright infringement.

On the other hand, there is what is known as secondary copyright infringement which

exists where ISPs indirectly sell, deal or disseminate unlicensed copies of copyrighted materials

or in any other way facilitate by providing equipment such as server with the capability to

copying protected material that facilitates a primary infringement by one of its subscribers or

online users.4 The question that arises therefore is when can an ISP be liable under copyright

law for the materials made through its facilities? This is a very serious act as underthe

Copyright Act by a party can be held liable for infringement even if they only indirectly

particpate in the copying or distribution of a work. Under the concept of "contributory

infringement," a party may be guilty of copyright infringement when they cause or contribute to

the infringing conduct of another with knowledge of the other party's infringing activities. In

addition, under the concept of "vicariously liability," a person may be liable for the infringing

actions of another if the person has the right and ability to control the infringer's acts and

receives a direct financial benefit from the infringement. Vicarious liability can be established

without the defendant having actual knowledge of the infringer's activity. Under these two

3 The holder of copyright has a course of action laid out in Copyright Act s 32.-(1) An infringement of copyright shall be actionable at the suitof the copyright owner; and, subject to the provisions of this section, in any action for such an infringement all such relief by way of

damages, injunction, accounts or otherwise, shall be available to the plaint8 as is available in respect of the infringement of other proprietary

rights.4Kelly, J. X. ISP LiabilityOverview. JISC. 23 November 2007.


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theories, it is possible for an ISP to be held liable for copyright infringement, even if the ISP was

not directly involved in making the infringing copy. This according to s 31 (7) and (8) of the

Jamaica Copyright Act Jamaica.

(7) Where copyright in a work is infringed by a public performance of the work or by the

playing or showing of the work in public by means of apparatus for playing sound recordings orshowing films or receiving visual images or sounds conveyed by electronic means, the persons

specified in subsection (8) are also liable for the infringement.

(8) The persons referred to in subsection (7) are-

(a) a person who supplied the apparatus or any substantial part of it, if when he supplied the

apparatus or part-

(i) he knew or had reason to believe that the apparatus was likely to be so used as to

infringe copyright; or

(c) a person who supplied a copy of a sound recording or film used to infringe copyright, if

when he supplied it he knew or had reason to believe that what he supplied or a copy made

directly or indirectly from it, was likely to be so used as to infringe copyright.

ILLUSTRATIVE CASES

Direct Liability of ISP for copyright infringement

Hit Bit Software GmbH v AOL Bertelsmann Online GmbH & Co. KG [2001] E.C.D.R. 18

In this European case decided in 2001 a Musik Sound Forum by America Online (AOL)

a well-known ISP made it possible for internet users to upload and download Midi files three of

which the claimant has copyright. The site forbade any copyright infringement and had voluntary

scouts that checked to ensure that the files uploaded were virus free. Claim brought for copyrightinfringement inter alia.

It was held that America Online (AOL) was directly infringing the copyright in the MIDI

files by providing a service which enabled such files to be downloaded without the consent of

their copyright owner and that if AOL provided illegal content on its sites, it would be liable for

further infringements in regard to that content even if it had no knowledge of them.

Playboy Enterprises v Frena 839 F. Supp. 1552 (M.D. Fla. 1993)

This case an even greater liability for bulletin board operators and ISPs. In this case a

BBS operator whose bulletin board contained copyrighted photographs owned by Playboy was

found liable of violating the right to display and publish the photographs. This was true even

though the BBS operator did not make the copies himself, and in fact was never proven to have


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knowledge of their existence. In effect, this case held the BBS operator liable merely for

providing a means by which copies (made by others) could be distributed to the public.

If this logic were extended to ISPs in general, an ISP could be held liable for its members

activities on the ISPs web and newsgroup servers, even without knowledge of such activity.

However, it is unlikely that such a ruling would ever be made given the major impact such a

position would have on the expansion of and access to the Internet.

A&M Records, Inc. v. Napster, Inc 239 F.3d 1004, 1013 (9th Cir. 2001)

In the case ofA&M Records, Inc. v. Napster, Inc. to be a direct infringement of copyright held

by the recording companies. The Court determined that, even though Napster was not charging

for its service and users were downloading the music for their personal use, the downloading was

not a "fair use" under the United States Copyright Act (107). It was found that "repeated and

exploitative copying of copyrighted works, even if the copies are not offered for sale, may

constitute commercial use."

Secondary Liability of ISP

Religious Technology Center v Netcom 901 F. Supp. 1519 (D. Colo. 1995).

In the seminal 1995 California case ofReligious Technology Center v Netcom the

potential liability of ISPs for the activities of others was thoroughly examined . The facts of the

case are that files comprising copyrighted materials owned by the Church of Scientology were

uploaded on a newsgroup server controlled by an ISP known as Netcom. The subscriber that

uploaded the files on the Internet actually utilized a local bulletin board service (BBS) that

provided Internet access through Netcom. After both the BBS and ISP declined to deny access

to the individual involved and declined to they remove all documents containing Church

materials from the servers they controlled, the case went to court.

The court found that neither the BBS nor Netcom had directly, personally or primarily

infringed the Church's copyrights, since neither party had taken any affirmative steps to cause the

copies to be made. Although the computer systems of both parties operated automatically to

receive and transmit the postings of subscribers, the court found that this is not enough to

establish a direct infringement claim.

The court also decided against the Churchs claim that Netcom and the BBS operators

were vicariously liable for the infringement of the copyrights as there was no evidence that there


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was any direct monetary reward to either Netcom or the BBS for the posting of infringing

materials.

However, the Court found that Netcom may be liable to the Church under the theory of

contributory infringement by materially contributing to the infringement of the user. Although

the court recognized that there could be no liability even under the contributory infringement

theory unless Netcom knew of the infringement, the court stated that if Netcom knew or should

have know about the presence of the copyrighted materials on its server and failed to remove

them, that failure could amount to contributory infringement. The notice that the Church

provided to Netcom may have been enough for Netcom to be liable for its failure to act on that

notice. Unfortunately, before this final issue could be determined by the court, the parties

settled the lawsuit.

SEGA v Maphia 30 U.S.P.Q. 2d 1921 (1994); 1994 U.S. Dist. LEXIS 5266 (N.D. Cal. 1994)

Cases decided since Netcom have followed the Netcom court's analysis. For instance, a

bulletin board operator who knowingly allowed his users to upload and download copyrighted

SEGA games was determined not to be a direct infringer of SEGA's copyrights. However, since

the BBS operator knew about the copies, and developed a scheme to actively encourage the

uploading of such copies, he was found guilty under the theory ofcontributory infringement.

LIABILITY IN REGARD TO TRADEMARK INFRINGEMENT

ISPs are liable for their own activities that constitute trademark infringement much in the

same way as they are for any copyright infringement they carry out. As a result, if an ISP such as

C & W Jamaica were to advertise their services under a trademark that is confusingly similar to

a mark of another party such as AOL CompuService, they would be exposed to charges of

trademark infringement contrary to Trade Marks Act 2001 of Jamaica. In addition, if an ISP's

own web page contained the trademarks of another, the ISP's use of those marks would be

analyzed like any other web page owner and they could be liable for the tort of passing off.

ISPs are in a slightly different position when one of their customers misuses a trademark

of another. Although a case like this has not yet been presided over by any court it is reasonable

to infer that in situation where an ISP is duly notified of a trademark infringement being carried


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out by one of its customers and nevertheless fails to act on this notification , such an ISP may

very well face liability under the theory of contributory or vicarious trademark infringement.

Much like copyright infringement, contributory trademark or vicarious infringement liability

may exist where the ISP causes or contributes to the infringing conduct of another with

knowledge of the users infringing acts.

LIABILITY FOR DEFAMATION

Several years ago, the hottest legal issue relating to the Internet was defamation (a broad

term encompassing slander and libel). Evidence of this can be found in The Law of Defamation

and the Internetwhere it was stated that

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 andseverally 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.5

Several factors make ISPs attractive defendants in defamation claims, many of which

relate to the costs associated with litigation. For example, the author of a defamatory statement

will often reside outside the jurisdiction of the plaintiff, whereas the ISP that carried the

statement does business in the plaintiff's jurisdiction.6

In this area, there are two noticeable decided cases that emanate from the United States of

America that have even influenced the decisions of English judges when they adjudicated over

similar cases two of which will also be explored below.

US Authorities

Lunney v Prodigy Services Co (1998) 250 AD 2d 230

In the Prodigy case, Prodigy was sued for defamation based upon the statements made by

one of its customers in a Prodigy bulletin board. In determining whether Prodigy was liable for

the defaming statements of its customer in this case, a New York state judge was left to

5 Matthew Collins, The Law of Defamation and the Internet(2nd edn Oxford University Press, Oxford 2005) paras 15.386 Michael Deturbide, 'Liability of Internet Service Providers for Defamation in the US and Britain: Same Competing Interests, Different

Responses', [2000] 3 The Journal of Information, Law and Technology (JILT) accessed 05

October 2011
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/


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determine whether Prodigy was a "distributor" of information, such as a bookstore or library, or

whether Prodigy was a "publisher" of information, such as a newspaper. As a mere distributor,

Prodigy would not be liable for the statement. In contrast, if Prodigy was considered a publisher

(with greater control over the information's content), Prodigy would be liable. In a decision that

shocked most on-line service providers, the judge held that, as a result of Prodigy's well-

publicized policies of monitoring and censoring its forums, Prodigy was a publisher and was

potentially liable for the defaming statement. Although the case was settled by the parties and

Prodigy moved for a withdrawal of the judge's decision, the judge refused.

Cubby Inc v CompuServe Inc (1991) 776 F Supp 135

In the CompuServe case, a similar factual situation was encountered by a federal court. In

this case, however, the court found that CompuServe acted merely as a distributor of information

in its discussion groups, and therefore was not liable. It is important to note that CompuServe

avoided liability because it did not know about the defaming statement, nor did it have any

reason to know about the statement. If a distributor knows about a defaming statement and

continues to distribute the information, liability is not so easily avoided.

Key Note

In analyzing these cases, most commentators noted the irony that Prodigy was more

likely to be liable for defamation because of the additional steps it took to control the content of

its discussion groups. CompuServe did not attempt to monitor and control its discussion groups

to the extent done by Prodigy, which made it easier for the CompuServe judge to find that

CompuServe was merely a distributor of information. This lead many attorneys to advise their

clients to avoid censoring such discussion groups, for fear of defamation liability. Such a hands-

off approach can only increase the likelihood that defamatory statements will be made in the

future.7

7


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Common Law (UK) Authorities

Godfrey v Demon Internet Ltd[2001 ] QB 201

Godfrey was the first decision in the U.K In 1999 and it signaled that the U.K.

Defamation Act 1996 resulted in a different approach to ISP liability for defamatory statements

made by subscribers over their servers. Although the parties eventually settled their dispute, an

earlier motion that was filed by Godfrey to strike out parts of the ISP's defence led to the

judgment discussed herein.

The Defendant ISP, Demon Internet, operated a News group and stored its contents for

two weeks. The received one such article defaming the character of the plaintiff which was

posted by an unknown person utilizing another service provider. The Plaintiff requested that the

Defendant remove the offensive posting. It did not oblige, and the posting remained on its news

server for two weeks. There was no dispute that Demon could have removed the posting at

Godfrey's request so he sued for defamation.

In its defence the defendant argued that it was not, at common law, a 'publisher' of the

allegedly defamatory posting, and that even if it was, the defence ofs. 1 of the Defamation Act

1996 was available. The Plaintiff sought to strike out this part of Demon's defence pleadings, as

disclosing no sustainable defence.

Godfrey succeeded in his application. In its decision, the Court cited the Americanauthorities, but cautioned that 'Care has to be taken before American cases are applied in English

defamation cases'.

The Court held that Demon was not the publisher of the defamatory material within the

meaning of the Act. Therefore, it satisfied the requirement of s. 1(1)(a). However, the Court

found that the Defendant did notmeet the requirements of s. 1(1)(b) and 1(1)(c), which were also

necessary to establish the defence. Demon knew of the posting but did not remove it. Therefore,

according to the Court, the Defendant did not take reasonable care, and had reason to believe that

it contributed to the publication of the defamatory statement.

The Defendant also relied on theLunneydecision, which did not consider s. 230 of the

CDA in its analysis. The English court found that under English common law Prodigy would

have been considered to be a publisher in that case. Therefore, under common law principles or

the application of s. 1 of the Defamation Act 1996, Demon had no defence.


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Bunt v Tilley and other [2007] 1 WLR 1243 ;[2006]EWHC 407 (QB)

The claimant brought proceedings for libel against the six defendants. He alleged that the

to third defendants had posted defamatory messages on websites hosted by third parties and that

they had done so by means of the services provided by the fourth to sixth defendants, theirrespective Internet service providers. It was not alleged that the fourth to sixth defendants had

any role other than that of granting access to the Internet to the to third defendants. The fourth to

sixth defendants applied for orders striking out or granting summary judgment on the claims

against them, contending that they were not publishers of the messages at common law.

The court granted the application on the basis that to be liable for a defamatory

publication at common law a defendant must knowingly be involved in the process of

publication of the relevant words, and it was not enough that the defendant merely played a

passive instrumental role in the process. Also influencing the courts decision was the fact that

there no realistic prospect of the claimant establishing that any of the fourth to sixth defendants

had knowingly participated in the relevant publications. As a matter of law an Internet service

provider which performed no more than a passive role in facilitating postings on the Internet

could not be deemed to be a publisher at common law. Therefore the claims against the t the

fourth to sixth defendants was rightly struck out.

This case can be distinguished from the Godfrey case on the basis that here the ISP had

no knowledge of the infringement by the user.

LIABILITY OF ISP FOR CHILD PORNOGRAPHY

Similarly, ISPs must also contact the originator of the communication and prevent access,

since they are the conduits or off-ramp to the end user. Thus liability is couched in the fact that

an ISP is either an innocent disseminator or just merely distributing, but with the knowledge of

the content thereof. According to the Child Pornography (Prevention) Act 2009 of Jamaica

which is in line with the legislations of many other countries and the international treaties;

4.-(1) A person commits an offence who knowingly

(a) produces child pornography;

(b) distributes, imports or exports child pornography;

(c) distributes any advertisement likely to be understood as conveying that the advertiser or any

other person produces, distributes, imports, or exports, any child pornography; or

(d) possesses any child pornography for the purpose of distributing, importing, or exporting,

it.


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(2) In this Act, distributing child pornography includes selling it or publishing it in any form, and

parting with possession of child pornography by exposing or offering it for acquisition by another

person.

This means that in Jamaica ISPs are exempted from liability if they play a passive role in

the transmission of such pornography, viz., have no knowledge that their servers are being used

to disseminate pornographic materials. Under the Protection of Children Act, 1978, it is a

criminal offence to take, distribute, exhibit, or possess even one 'indecent' photograph of a

child in England and in Wales much in the same way as Jamaica makes it a criminal offence.

In the US the situation is slightly different in that by virtue of the Digital Millennium

Copyright Act (DCMA) 1998 and the Communications Decency Act (CDA) which when

enacted which brought a certain degree of immunity to the ISPs as it recognized the perils of

such regulations as stifling growth, slowing innovation and (as involving) too much censorship.

The case Doe v. America Online718 So 2d 385 (4th Cir., 1999) is illustrative of how

CDA section 230 of the interpretations have resulted in a favourable ruling for AOL in a case of

child pornography. AOL was held not liable for not monitoring the chat room thereby violating

obscenity statutes.

CONCLUSION

The approach of the US has been pro-ISPs as courts and the legislators have largely

concluded that if intermediaries were to be held liable every time objectionable content has been

posted online, the threat of liability and efforts at clearance could weaken the Internet. The US

pro ISP moves can be found in two regimes.

The first regime is found in s 230(c) of the Communications Decency Act (CDA) which

provides total immunity in respect of all kinds of liability bar that relating to intellectual

property, so long as the content in question was provided by a party other than the service

provider. See Zeran v. America Online, Inc.,129 F.3d 327, 330 (4th Cir. 1997).

The second regime, found in the Digital Millennium Copyright Act (DCMA), 1998Title

512, exempts online intermediaries of various types from liability in relation to copyrightinfringement by means of a set of safe harbours, but only on certain terms, such as the

disclosure of the identity of infringers on request, subscription to a detailed code of practice

relating to notice, take-downand put-back, and the banning of identified repeat infringers

from access.


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As it now stands, there is no such move being made by the UK or Jamaica. They have

opted to shoot the messenger all be it only when they, ISPs are shown to participate in a way

that goes past passivity, viz., where they have knowledge of the material being posted and stored

on their servers. It is submitted that this continue to be the case or that Jamaica and UK adopt a

similar stance to the USA. These jurisdictions are closer to private enforcement by ISPs, which

has raised serious concerns since the early days of Internet regulation and continues to raise such

concerns. One concern is that holding ISPs liable for potentially injurious content would

encourage them to screen postings, filter out potentially controversial postings, and restrict

access to controversial content. Risk-averse ISPs might seek to minimize their potential liability

by limiting access to any risky content, or disabling any interactive services that could increase

their potential liabilityas long as the utility they derive from allowing the distribution of

infringing materials remains low.

There is a serious concern that turning decisions regarding access to information to

private parties, motivated by profits, would compromise free speech.


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REFERENCES

Anjali Anchayil & Arun Mattamana, Intermediary Liability And Child Pornography: A

Comparative Analysis[2010] Journal Of International Commercial Law And Technology

Vol. 5, Issue 1

Ian Lloyd, Information Technology Law (5th edn Oxford University Press, Oxford 2009)

Matthew Collins, The Law of Defamation and the Internet(2nd edn Oxford University Press,

Oxford 2005)

Matthew Just, 'Internet File-Sharing and the Liability of Intermediaries for Copyright

Infringement: A Need for International Consensus' [2003 ] 1 The Journal of Information,

Law and Technology (JILT) accessed 05

October 2011

Michael Deturbide, 'Liability of Internet Service Providers for Defamation in the US and Britain:

Same Competing Interests, Different Responses', [2000] 3 The Journal of Information,

Law and Technology (JILT) accessed

05 October 2011
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2003_1/http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2003_1/

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