Olivia O'Kane - Internet Service Providers and User Generated Content

The Lord Chief Justice of Northern Ireland recognised the advantages and the dangers of the internet and remarked on the role of service providers in R v McCartney [2009] NICA 52 the:

"[16] The internet has revolutionised the way in which we live…there is much that is positive about the internet, this case demonstrates the dangers to which children can be exposed as a result of which they may be corrupted or indeed in some cases exploited…This case illustrates graphically the dangers faced by adolescents with unsupervised access to the internet and the need for parent to be aware of the requirement for a high degree of supervision of the use of computer equipment. It also raises serious questions as to whether service providers are doing enough to prevent the dissemination of this type of dangerous and degrading material on the internet and indeed whether there is in fact a legal obligation on them to do so."

Currently, in Europe there is no general requirement for an internet service provider (“ISP”) to moderate user generated content (“UGC”). 

The Legal Framework

The following legislation provides safe harbour defences which precludes liability arising for an Internet Service Provider in relation to unlawful material posted on the internet until and after the ISP has been notified of the unlawful activity. Once the ISP is notified of the unlawful content it is usually accompanied by a request that it should be taken down and the obligation for the ISP is that it should be removed within a reasonable period of time after notification.

Therefore liability for online unlawful material in respect of user generated content which is not moderated by an ISP arises only once on notice of the unlawful material:

• Pursuant to Regulation 19 of the Electronic Commerce (EC directive) Regulations 2002 where an ‘information society service’ is provided and which consists of the storage of information provided by a recipient of the service, the service provider is not liable for damages or for any unlawful activity as a result of that storage, where the storage provider "does not have actual knowledge of unlawful activity or information” and the provider “upon obtaining such knowledge or awareness acts expeditiously to remove or to disable access to the information."

• Directive 2000/31/EC at Article 14 and 15 provides that:
Hosting

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: 

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; 

or 

b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

No general obligation to monitor 

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity…

• Section 1 of the Defamation Act 1996 also provides the safe harbour defence to non publishers but only up until the point of notification.

The Case Law

The Courts held in Tamiz v Google Inc [2013] EWCA (previous post on that case here) five weeks between notice to and take down by the ISP was a reasonable period of time. It also held that prior to notification there could not be primary or secondary liability for defamatory content attributed to the ISP. Google Inc had no control over any content and was not a publisher in law and was held to be a mere service provider. This decision endorsed the dictum set down in Bunt v Tiley and others [2006] EWHC 407 and Metropolitan International Schools Limited v Designtechnica Corpn and others [2009] EWHC 1765.

In J19 & J20 –v- Facebook Ireland [2013] NIQB the Belfast High Court granted an interim injunction against Facebook to remove, after notification, all references to and pictures of the claimant to include all entries and comments about each of them. The Belfast Court followed this position in XY –v- Facebook Ireland Limited NIQB [2012].

In AB –v- ISP Ireland Limited [2013] NIQB in dealing with a defamation case the High Court in Belfast recognised that Facebook is not a publisher in law and the case against it was dismissed. The Court provided a useful sum up of the problems of internet trolling and anonymous law breakers:

"[14] The Courts in Northern Ireland have demonstrated their availability and willingness to protect the interests of those whose legal rights are infringed by the cowardly and faceless perpetrators of this evil. As the present case demonstrates the law, through the courts, penetrates the shields and masks of anonymity and concealment."

As such libel damages and costs were awarded in favour of the claimants against the Facebook users only and not against Facebook itself.

Comment

Article 10 of the European Convention on Human Rights (“the Convention”) provides that everyone shall have the right to freedom of expression. This right includes the right to impart information and ideas, as well as the right to receive the information.This right is not absolute and is subject to certain restrictions that are in accordance with the law and to restrictions which are necessary in a democratic society. This right is often engaged at the same time as a person’s right to private and family life, home and correspondence. Article 8 of the Convention is also a qualified right which is subject to certain restrictions that are in accordance with the law and necessary in a democratic society. The right to ‘privacy’ is often balanced with the right to freedom of expression and all the circumstances of each case are taken into account when a court undertakes the ultimate balancing test between the two rights.

These Convention rights do not however provide legal protection to ISPs for unlawful content posted on the internet but such rights are engaged in almost all internet cases. In July 2008 the Council of Europe (“COE”) developed Human rights guidelines for ISP’s. The COE recognised the important role that ISPs play in delivering information but the COE stressed the importance for the providers to be aware of the human rights impact that their activities may have (see here).

The Data Protection Act 1998 provides, amongst other things, that data controllers must in the pursuit of ‘fair processing’ gain consent of users to enable it to process personal data and in the case of sensitive personal data must obtain express consent. Many social networking site operators obtain such consent during member registration and before admission is granted. It is without question that substantial amounts of data is disclosed voluntarily, for example on social networking sites World Wide, and people, companies or even employers are collecting such data.

Whilst the interaction of the law with the internet does pose problems, like science the law develops. The law continues to develop in internet defamation law, internet copyright laws, cybercrime and so on. But it is clear that a potential claimant does have effective remedies against the individuals who authored, contributed and/or had control over the unlawful content even if ISPs currently have limited legal liability.


Olivia O’Kane (@OliviaOKane1) is a Solicitor Advocate practising in media law in Northern Ireland. Earlier posts featuring Olivia including a discussion on the key changes made by the Defamation Act 2013 here, on Justice Horner in the Belfast Telegraph here and comments on Northern Ireland libel laws in the Ulster Business magazine here. See Olivia in the Inforrm blog here. Read an interview with Olivia on social media for lawyers here. Olivia is also listed on Ireland's legal tweeters on Defero Law here. On Twitter here.