Hi friends, I would like to share with all of you a recent High Court defamation case, which highlights the potential legal consequences of social networking for ISPs and the provisions of “hosting defence”.
Currently, Internet Service Providers can claim exemption from liability due to:
The judge in this case, analysed the requirements of the above legal provisions and confirmed as follows:
1) The inclusion on a website of content written or proactively chosen by the operator, alongside unmoderated user-generated content, did not necessarily preclude the operator from relying on the Regulation 19 defence.
2) ISPs' protection is not withheld merely, because a defendant, who would otherwise qualify for protection, also provides a different service, which does not qualify for it. A court will only have to take into account the specific blog posting complained of, when determining whether ISPs could potentially have a defence under Regulation 19.
3) In order for the ISP liability exemption to be withdrawn, the ISP must have actual knowledge of unlawful activity or information at the time, when publication is occurring.
4) In order for the ISP liability exemption to be withdrawn, the ISP must have constructive knowledge of blog post and that it was unlawful and untrue.
5) For ISPs to continue benefitting from the liability exemption, they must act expeditiously to remove or disable access to the post, once they became aware of it and until a decision is taken as to the unlawfulness or not of the material.
6) Assuming that, the ISP is a “service provider” for the purposes of Regulation 19, has no actual or deemed knowledge of the defamatory post and acts expeditiously to remove it, is the user acting under ISP’s authority or control, when he/she post the statements?
This case undoubtably offers ISPs and other website providers some peace of mind as to the liability exemption.
It also, however, highlights ISPs legal responsibilities and the importance that they review their terms and conditions (and the way such terms are brought to the users attention) and adopt suitable usage policies that address the above and give ISPs the right to act expeditiously where it is alleged defamation without incurring any liabilities vis-a-vis their users.
For a fuller discussion of the case please visit www.anassutzi.com/articles
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