Obligations and Liability of ISPs as Guardians of Internet Content: Comparative Perspectives
Gregor Urbas, Kendra Fouracre · Computer Law Review International · 2010
Abstract To what extent can Internet Service Providers (ISPs) and Internet ContentHosts (ICHs) be liable for criminal and civil breaches of the law arising from the distribution of illegal Internet content such as child pornography or other offensive images? Do they have obligations to assist in the prevention and detection of crimes involving illegal content? What about material that breaches privacy, consumer protection, copyright or contract laws? If such liabilities do exist, what can ISPs do to protect themselves? These questions have been approached in several different ways around the world, with a number of regulatory approaches emerging including direct legislative provisions on ISP and ICH obligations, mandatory or optional content blocking or filtering regimes, “three strikes” policies aimed at controlling consumer behaviour, and “safe harbour” provisions for commercial conduct that does not actively assist in the commission of criminal offences or civil wrongs. This article reviews recent developments and emerging schemes of civil and criminal liability that apply to ISPs and ICHs, or that impose requirements on ISPs to act against their customers. Details of these schemes are drawn from a variety of jurisdictions, in order to highlight similarities and differences.