ISPs Liability In Defamation/Copyright/Civil Infringement A Broad Picture



ABSTRACT

The member states in the year 2000 adopted an e-commerce directive by the operation of which the ISPS are held liable only if they have knowledge and control over the infringing material. The system seems lenient when it is kept in contrast with the strict liability regimes still it gives the ISPS with an option to remove the infringing material once it is reported even before ensuring whether the allegations are obscene/defamatory/copyright infringing or not. This causes an imbalance in the right to freedom of speech of an individual and the protection of reputation of one person on the internet where the judicial system seems to put the later over the former. A prime example can be the current system in UK where there is very little defence. The interpretation by the other member states also seems inconsistent which shows the lack of clarity. The land mark Australian case of Roadshow Films Pty Ltd v iiNet Limited [2010] FCA 24 also sheds some light on the ISP liability. In the US however, through the CDA 230 a broader immunity is conferred which is applied by the courts .The essence of opposition is the party suffering the injury cannot get any remedy. The internet is a completely different medium than the usual mode of publishing and hence has to be treated differently. Treating them similar to the secondary publishers will create a conflict. The dissertation advocates a broader immunity to the ISPS in the Europe.

Table of Contents

ABSTRACT2

CHAPTER 1:6

ISPs liability in defamation/copyright/civil infringement a broad picture6

Introduction6

Liability for Defamation7

Godfrey v Demon8

Innocent Dissemination - the Legislation8

In Summary9

Electronic Commerce (EC Directive) Regulations 200210

Qualified Immunity11

Actual Knowledge12

Defamation, Liability, and Online Discussion Groups13

Definition of Internet Service Provider14

Copyright Infringement Involving ISPs15

Several Theories on ISP Liability for ISP Liability for Copyright Infringement18

Direct Infringement18

Vicarious Infringement19

Contributory Infringement19

Exemption from Liability as Public Utilities20

IV. ISPs' Copyright Liability21

CHAPTER 2: Literature Review25

Literature Review25

Current law system in UK and Europe for ISP liability25

Types of ISPs25

European Union Directives26

Rights Holders Pressure for Anti-Piracy Measures27

French ISP Anti-Piracy Accord27

United Kingdom Threatens Legislation29

Belgium Court Orders ISP Filtering30

MySpace Deemed a "Publisher" Not Entitled to Immunity31

DailyMotion Liable Despite Status as Hosting Service32

Google Video Deemed Obligated to Prevent Re-posting of Infringing Content33

RapidShare Liable for User Infringements34

ISP Reaction35

Conclusion36

CHAPTER 3:37

Lack of uniformity in judicial interpretation of this law in UK and Europe37

The means: the restrictive interpretation of the notion of use in the course of trade37

The justification: the rigidity of trade mark law in Europe38

CHAPTER 4:42

A brief look at the mere conduits theory42

CHAPTER 5:47

Short analysis of the Australian case Roadshow Films Pty Ltd v iiNet Limited [2010] FCA 2447

Implications for ISPs/CSPs48

Ostensible authority50

Managing the risks51

By Edward Stephan, Gadens Lawyers Brisbane52

The Background Facts52

A brief history52

Final arrangements54

The road to court54

The Findings at Trial54

The Court of Appeal55

The Court Refuses to Grant Relief56

Take Away Messages56

CHAPTER 6:58

Various judicial rulings from different jurisdictions with respect to ISP liability58

Case Study60

CHAPTER 7:63

Conclusion63

Bibliography67

CHAPTER 1:

ISPs liability in defamation/copyright/civil infringement a broad picture

Introduction

Providing computers and internet access to students and staff means that responsibility for what they do online can, in ...