The crumbling of the innocent carrier defence?

“Jury exacts $32m million penalty from ISPs for supporting crminal websites” One of the topics of conversation at all the Party Conferences was the need to address the dark side of the Internet. There is a common view that the same law should apply on-line as off-line. But on-line specfic legislation equally commonly turns into attempts to give players exemption from off-line liabilities because “it is too difficult too …”, “we are an immature technology …” etc.   

Those excuses are wearing thin – if they ever were valid.

The consequences will be “interesting” to say the least – if attempts at new on-line specific legislation fail and off-line law – from the Bills of Exchange and sale of Goods Act onwards – is applied.

It will be even more interesting if courts continue to narrow the “innocent carrier” and “software is a product not a service” defences for that which is sold as fit for family or small firm use.

We have many allegations as to what the law is – and out of court settlements for those who have the expertise or funds to challenge those interpretations.

On Friday the EURIM Security by Design group reviewed the first draft of a paper that attempts to address some of the consequences if (or perhaps when) innocent carrier and other liability avoidance defences crumble.

It was a surprisngly constructive meeting. Those who raised problems all agreed to draft short-order material to address the problems they raise. Whether they deliver is another matter, but the sense of urgency was encouraging – or should it have been worrying?

P.S. I now have provisional answers to the five questions I raised in my blog “How real is the threat of e-crime?”  They are:

1) Probably not

2) Perhaps

3) No

4) Possibly

5) Maybe

I leave you to match the answers with the questions.

A sixth question has been suggested.

6) Is it sufficient for them to seek to mandate security by design/default in new systems and in the products and services the procure?

The answer is “probably” – but sign are that many suppliers will pay lip service while activley resisting “because it is too difficult” – until forced to succumb by the pain in their wallets as customers migrate.