Legal Update: policing content

Internet service providers are breathing a sigh of relief following the High Court's decision in July to modify the terms of a...

Internet service providers are breathing a sigh of relief following the High Court's decision in July to modify the terms of a media ban that protected the identities of the killers of James Bulger.

Initially, the injunction placed a ban on any information appearing in the media, including public computer networks, leading to the identity, or future whereabouts, of each of the boys.

The Judge also added a proviso alluding to any information that might be published on the Internet or in a foreign jurisdiction - effectively making ISPs liable for the sprawling mass of ever-changing information carried on their sites everyday.

Not surprisingly, ISP Demon Internet, which had its fingers burnt in 1999 when UK scientist Lawrence Godfrey bought a defamation suit against it, took up the baton to clarify the decision, arguing that the injunction was unfair to ISPs.

As a consequence, the order was revised, with the Judge clarifying that an ISP will only be in breach of the injunction if its employees were aware that the material had been placed, or was likely to be placed, on its servers, or if it could be accessed on its service and the ISP had failed to take reasonable steps to find out what had been posted and prevent the publication by removing or blocking the material.

So what are the precautions that ISPs, and websites in general, should take to avoid being held liable for illegal content? Since "knowledge is everything" - liability usually hinging on awareness of illegal material - website owners should be vigilant.

The law does not expect owners to engage in unworkable practices by policing content on the hour, but if an email or letter from a user alerts a company to the existence of illegal material on a site, then that material should be removed immediately.

Although this may be premature, it can always be reinstated later. If the material later reappears elsewhere, as long as "reasonable steps" have been taken to remove it the first time it appeared and "reasonable steps" taken thereafter to check for its reappearance, there shouldn't be a problem.

Since it is possible that the all-important mail drawing attention to the presence of illegal material on site, may disappear into a vortex of thousands of other emails, ensure there is a system in place to log and deal with complaints.

Make sure your terms and conditions of use allow you to terminate a customer's use of service, should that customer be a repeated offender in posting illegal material on a site. Also, ensure that they permit the disclosure of customer details in response to a court order.

Be aware that illegal content comes in many guises - it may be defamatory, obscene, or constitute infringement of copyright.

UK stakes online gambling
A few months ago, I reported on the legal framework surrounding the expanding online gambling industry. The Independent Gambling Review Body has since issued its report, strongly recommending that online gambling sites should be more easily regulated.

As such, it recommends that a single regulatory authority, the Gambling Commission, should license all gambling operators. Also, that an online gambling operator, seeking a licence from the Commission, should be registered as a British Company, locate its server in the UK, and use a Web address for its gambling site.

It also suggests that such licensed online gambling sites should be permitted to advertise in the UK. If all, or any, of these suggestions are taken up, then the UK looks set to become a thriving centre for online gambling. All this comes at a time when the US becomes even more entrenched in its anti-online gambling stand. Under a Bill proposed in July in the US, anyone involved in the gambling industry could be subject to a five-year sentence for accepting credit cards or cheques for Internet gambling!

Search engines rank businesses
Search engines are also under the legal spotlight, this time in the US, following recent disclosures that certain search engines may be charging businesses for the privilege of receiving a higher ranking in search results.

Manipulating search results in this way may amount to deceptive advertising and has therefore attracted the attention of the Federal Trade Commission. The UK may not be far behind.

Further information on all of the above is available at ebldirect.com, an online service that offers legal assistance to professionals working in e-business.

As well as providing analysis across the spectrum of e-commerce legal issues, it provides case reviews and legislation.

Call 0845 608 1188 for details or sign up for a free trial at www.ebldirect.com.
This was last published in August 2001

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