In my last post, I put intermediaries' liability top of my list of 'Law 2.0' issues. Bang on cue, the 'Independent', reported on Friday that "Prince sues internet sites for breaching his copyright." Not, of course, that he's the first.
In this post, I'm going to look at where things stand in Europe at the moment - I'll leave the USA and elsewhere for another day - and make some suggestions about what I think needs doing. But please let me have your thoughts on this hottest of hot topics.
Legal framework under strain?
It is and there's two main reasons. First, the law is 'pre Web 2.0': it was developed in the mid to late 1990's,before the growth of search engines and social networks. It was designed to reflect the role of ISPs as carriers of email and web traffic and providers of web storage. ISP's said: "we handle traffic over which we have no control and we have no idea what we're carrying so you can't make us liable."
Second, advances in software to search and filter content have raised questions about whether service providers need to take any active steps to detect and remove illegal content in order to rely on the exemptions.
Background
Some of the complexity in the area comes from the fact that In the EU we've got two overlapping legal regimes for service provider liability. There's the E-Commerce Directive (2000) and the Copyright Directive (2001).
The E-Commerce Directive was part of the Commissions' mission to create some common rules for doing business online. It includes three categories of exemption for service provider immunity from damages claims and criminal liability for carrying or hosting illegal content. The exemptions apply to 'mere conduit' activities', caching and hosting. The immunity is 'across the board, and applies to all kinds of liability including copyright infringement and defamation. The exemptions are in Articles 12, 13 and 14 of the E-Commerce Directive and if you really want to get to grips with the subject, they're essential reading.
There are several key important points to note about these immunities which are built around the principle of 'hear no evil, so no evil, do no evil':
- The 'mere conduit' exemption applies provided that the ISP doesn't initiate or interfere with the transmission;
- The caching exemption has similar requirements and also requires the service provider to act 'expeditiously' to remove or disable access to the illegal content in certain circumstances.
- Article 15 removes any obligation on service providers to monitor content in order to qualify for these immunities.
At about the same time as the E-Commerce Directive was being developed, the European Commission was struggling with its Copyright Directive and its mission to give copyright law a facelift for the so-called 'Information Society' age. Although the E-Commerce exemptions covered copyright, ISPs were so worried about exposure to claims for copyright infringement that a specific exemption was included in Article 5.1 of the Copyright Directive. The wording is arcane and obtuse but its purpose is to give ISPs a limited liability for 'machine generated' copies (e.g. on routers). It also contains a limited exemption for lawful caching. I could devote the entire post to analysing its language. The exemption needs to be handled with care!
So where are we in age of 'peer to peer', social networks, search engine et al?
Copyright?
The answer is that we're in a state of uncertainty, unsatisfactory as that may be. In a recent case in Belgium, (May 2007) the collecting society SABAM sued the ISP Scarlet (formerly Tiscali) for handling peer to peer traffic containing musical files which breached copyright. Interestingly, the Judge did not even consider the ISP exemption in Article 5.1 of the Copyright Directive. Instead, the case centered around the 'mere conduit' exemption in Article 12 of the E-Commerce Directive.
In a nutshell, the case shows that the availability of fitering technology to ISPs and other service providers suggests that immunity may depend on them taking a more proactive role to deal with illegal content than was envisaged when the immunities were created around 2000.
Although the Judge noted that there was no obligation on the ISP to monitor - see my comments above - the Court decided in favour of SABAM. The Court decided that to be able to take advantage of the immunity, the ISP in this case had a duty to use filtering technology. He was influenced by one of the introductory paragraphs in the E Commerce Directive that said that the absence of a duty to monitor ".should not preclude the development and effective operation of technical systems of protection and identification and of technical surveillance" instruments made possible by digital technology."
Defamation?
The recent defamation case involving the ‘Mumsnet’ website – settled out of court - highlighted the uncertainty about how ‘expeditious’ the host site has to be in order to rely on the ‘hosting’ exemption in the UK’s E-Commerce Regulations.
The site was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.
"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," Roberts wrote on her blog for Guardian Unlimited.
"Put simply, libel law has not caught up with the digital age. It regards a bulletin board just as it does a newspaper or a book, which is a bit like trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach," she wrote.
Roberts, a former football journalist, said in the blog that she has asked the DCA to review the law. "This week Mumsnet has written to the Department for Constitutional Affairs urging the Government to reconsider this area in its forthcoming consultation on defamation," she wrote.
So where next?
As I suggested in my last post, the law and technology are fated to be in an asynchronous relationship, with one always chasing the other but never quite in sync. The E-Commerce Directive is due for review by the European Commission this year. But we have to complement the law with trans-national Codes of Conduct. These need to re-state what is expected of everyone - intermediaries, users and content owners and providers - in order to balance freedom of expression with rights of privacy and property in a fair and reasonable way.
Laurie Kaye
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