By Kevin Calder of Mills & Reeve
Letters from lawyers are generally not a popular inclusion in anyone’s postbag. A source of stress for ISPs and web site hosts is any letter which states that particular content infringes the rights of a third party or is defamatory and must be removed immediately, failing which legal action may be commenced.
ISPs and web hosts often find themselves the recipients of such letters as the relevant blog or web site maintainer can be hard to identify.
ISPs and web hosts argue that as regards content, they are in a similar position to a telephone company. Unlawful activity may take place over the telephone, but there is little the telco can do to prevent it, short of listening in to all calls.
Equally, web hosts that store content supplied by third parties are generally not in a position to check all that content, and the law acknowledges that it would be unfair to make an ISP or web host liable for content of which it is unaware.
Legislation passed in 2002 following an EU directive means that in general a UK web site host is not liable for damages or a criminal sanction as a result of storing and serving unlawful third party web content - provided that the web host is unaware of the unlawful nature of the content, has not modified it, does not initiate the download of it (or choose who gets the download) and, on being made aware of any unlawful material, acts ‘expeditiously’ to remove or disable access to it.
This provides some useful protection for web site hosts against liability for defamation or copyright infringement. However, in order to benefit from the protection, web hosts must ensure that they act quickly to remove any content following receipt of the lawyer’s letter stating that it is unlawful – the so-called ‘notice and take down’ procedure. There is no definition of ‘expeditiously’ but, clearly, the sooner the better, particularly on the 24/7 internet.
Web hosts will want to try and limit the extent to which they incur liability as a result of removing content – it is helpful to have clear terms of use confirming that unlawful content (including anything defamatory or infringing the rights of a third party) must not be stored as part of their hosting service, together with the right for the web host to remove or disable access to content on receipt of any allegation that it is unlawful.
Should web site hosts check content? This is a difficult choice. There is no statutory obligation on web hosts to check all hosted material, and if content is checked, then a web site host will be deemed to be aware of it, and may no longer have the benefit of protection under the 2002 legislation. However, if content is not reviewed, users might upload content which is wholly inappropriate to major sites hosted by the web host, and this could be available for some time without any action to remove it.
The appropriate choice will depend on the volume of the content in question, the user base, and the resources available to the web host. A prudent middle ground may be to use software tools to monitor unusual activity within web space, such as a spike of traffic relating to a specific file or files, and then to examine those particular files.
There is also the question of whether a web host should exercise their discretion and refuse to remove content if it appears that the lawyer’s letter is inappropriate – for example, where the alleged defamatory content appears to be factually accurate, or there is a suspicion that the letter is invalid and may have been sent simply to disrupt the site in question.
Web hosts who delay may lose the protection of the 2002 legislation, but it is worth bearing in mind that where a legal claim made in such a letter is wholly invalid, the claimant would not succeed in pursuing that claim against the web host in any event. In addition, a term in a hosting contract which states that a web host may shut down a website immediately when any allegation of unlawful content is received, without any checks that the claims made are reasonable, may not be enforceable against a consumer.
The current legal position means that the lowest risk option for a UK web host will typically be to promptly disable content, particularly where the hosting terms and conditions entitle the web host to do so. However, it is always prudent for a web host to have a procedure in place for this, including prompt notification to the relevant content owner.
There are increasingly calls for reform of the legal position in this area, amid growing concerns that free speech is being restricted as a result of web hosts preserving their position by deleting content first and asking questions later.
February 2008
Kevin Calder is a Partner in the Technology and Commerce Team at Mills & Reeve in Cambridge. Contact him by email: Kevin.Calder@mills-reeve.com
Legal _IT is a platform for information and debate on Internet and software legislation and issues.
