| Our society has now evolved as an Information | | | | avoid commission of offences/wrongs over the |
| Society. Now the paper based newspapers are being | | | | internet. Holding ISPs liable is not an end to achieve |
| replaced by the dynamic websites, which are | | | | but a mean to achieve other ends. So in this situation |
| sometimes being managed by intelligent agents. | | | | we must have to consider other possible solutions to |
| Where at one hand where this evolution has brought | | | | the problem as well and if we fail to find any other |
| us the knowledge explosion and now access to | | | | possible solutions then it may be our final resort |
| information is easier than ever before, on the other | | | | because law has to provide protection to the rights |
| hand new issues have also emerged and legislator is | | | | granted by it. However, in author's opinion there exist |
| confronted with new challenges. One of these issues | | | | certain solutions to this problem, which may provide |
| is the question regarding liability of intermediaries | | | | adequate level of security to all the stakeholders |
| (ISPs) for the infringements over the internet. | | | | without adversely affecting the freedom of |
| There are no boundaries and anything which is | | | | expression and the ultimate theme of internet. |
| published on internet becomes worldly public the next | | | | Possible Types of Liability of ISPs: |
| moment. This ease of worldwide publication has | | | | In view of the above discussion following can be the |
| invoked new threats to the society as well. It has | | | | possible options before us. These options were |
| disturbed the whole system of copyrights, civil | | | | considered in during the passing of Digital Millennium |
| liberties, protection against ethnic and religious | | | | Copyrights Act. This article is focused only few main |
| exploitation, law of defamation, child pornography and | | | | points of the discussion in this regard.i. Strict Liability: |
| cyber-terrorism. In such a situation it may not be | | | | According to Strict Liability criteria, ISPs may be held |
| easy to let ISPs go without any liability for the | | | | responsible for all the material hosted with them |
| material hosted on them. However, at the same time | | | | irrespective of their level of knowledge. |
| it may also not be an easy task for the ISPs (even if | | | | One argument in support of imposition of strict liability |
| they want to do so) to keep a check on all the | | | | can be that the ISPs are remunerated for the |
| materials hosted with them. The situation becomes | | | | services provided by them and therefore, like all the |
| even more trivial when it comes to territoriality of | | | | other big publishers and distributors are under a |
| law. The situation is yet be addressed by the | | | | responsibility to review the material hosted on them. |
| legislator in Pakistan. This article is an attempt to | | | | However, the argument against the imposition of |
| highlight the issues concerning the liability of ISPs | | | | strict liability can be that the situation of ISPs is very |
| consequent to the material hosted by them and | | | | different from the distribution companies as ISPs are |
| remedies adopted by the Europe and America. | | | | dealing with the electronic environment where |
| What is an ISP: | | | | information is changing every second and it is not |
| In general Internet Service Providers (ISP) perform | | | | possible to review this changing information.ii. |
| various functions and offer a variety of services like | | | | Vicarious Liability: |
| access to internet, hosting of information on internet, | | | | Vicarious liability can be defined as the liability imposed |
| network services etc. | | | | on a defendant in the circumstances when he had |
| EU Directive 2000/31/EC has defined service | | | | the right and ability to supervise the infringing activity |
| providers as any natural or legal person providing | | | | and had direct financial gain from the same. |
| information society services. The term "information | | | | The imposition of vicarious liability is hit by the |
| society services" is further elaborated in Article 1(2) | | | | argument that there does not exist any employer |
| of the Directive 98/34/EC as any service normally | | | | servant relationship between the subscribers and |
| provided for remuneration, at a distance, by | | | | ISPs and furthermore, that the ISPs are remunerated |
| electronic means and at the individual request of a | | | | for their services irrespective of the content of the |
| recipient of services. | | | | service i.e. ISPs are not directly benefited (besides |
| However, for the purposes of this article only the | | | | those special cases where an ISP is itself owns a |
| aspect regarding hosting of information on the | | | | particular website) from the activities performed by |
| internet will be discussed. | | | | the subscribers.iii. With Fault Liability: |
| Nature of Liability of ISPs: | | | | This is an instance where an ISP has the knowledge |
| It is important to understand that ISPs are usually | | | | about the infringing material. |
| not a direct beneficiary of the crimes/civil wrongs | | | | There are mainly two different standards of |
| committed by their subscribers. They are usually | | | | knowledge constructive knowledge and actual |
| remunerated for their services regardless of the | | | | knowledge. ISPs being the host of the infringing |
| content published over the internet. | | | | material are presumed to have constructive |
| There can be two instances of liabilities for the | | | | knowledge of the material so hosted. Therefore, |
| material hosted on internet:i. Criminal Liability: | | | | ISPs argue that the standard of knowledge to be |
| Criminal liability of ISPs may arise out of the crimes | | | | applied must be "actual knowledge".iv. No Liability: |
| committed over the internet. These may include child | | | | The fourth option in this regard can be no liability. In |
| pornography, cyber-terrorism, infringement of | | | | such case, ISPs may not be held responsible for an |
| copyrights etc.ii. Civil Liability: | | | | infringing activity even if they have the actual and |
| Civil liability refers to instances where ISPs may be | | | | informed knowledge of the same. |
| sued by private persons or organizations for | | | | EU Law: |
| infringements of their civil rights. Instances of civil | | | | Article 14 of the said Directive regulates the liability of |
| liability may include an action for defamation, | | | | the service provider for the information stored on |
| copyright infringement etc. | | | | them as under: |
| Both criminal and civil liabilities have their own | | | | 1. Where an information society service is provided |
| requisites, which sometimes also vary in a great deal | | | | that consists of the storage of information provided |
| for specific wrongs. | | | | by a recipient of the service, Member States shall |
| In order to constitute criminal liability two elements | | | | ensure that the service provider is not liable for the |
| are very necessary to be there:i. "Mens Rea" : Mens | | | | information stored at the request of a recipient of |
| rea refers to a guilty mind. In order to constitute a | | | | the service, on condition that: |
| person liable for a criminal wrong it is important to | | | | (a) the provider does not have actual knowledge of |
| establish that the act was done with an intent to do | | | | illegal activity or information and, as regards claims for |
| it in a harmful way. However, the requirements to | | | | damages, is not aware of facts or circumstances |
| establish "mens rea" vary according to the definition | | | | from which the illegal activity or information is |
| of wrong. It purely depends on the ingredients of a | | | | apparent; or |
| specific crime that what may constitute mens rea. It | | | | (b) the provider, upon obtaining such knowledge or |
| ranges from an act done recklessly to the clear | | | | awareness, acts expeditiously to remove or to |
| dishonest intentions.ii. Actus Rea: Along with a guilty | | | | disable access to the information. |
| mind the presence of actual act is also necessary. | | | | 2. Paragraph 1 shall not apply when the recipient of |
| This act can be an act of abetment or helping and | | | | the service is acting under the `authority or the |
| aiding a crime or can be actual commission of the | | | | control of the provider. |
| crime. | | | | 3. This Article shall not affect the possibility for a |
| Unlike a criminal act, a tort does not require the | | | | court or administrative authority, in accordance with |
| presence of guilty mind and it may be a tort may | | | | Member States' legal systems, of requiring the |
| sufficiently be proved if the commission of an act | | | | service provider to terminate or prevent an |
| falling under the definition of a tort (or a civil wrong) | | | | infringement, nor does it affect the possibility for |
| has been proved. | | | | Member States of establishing procedures governing |
| Of course, there always exist the exception to both | | | | the removal or disabling of access to information. |
| criminal and civil wrongs and one has the defenses | | | | Information Society Services are defined in Directive |
| warranted by law. Like an act done in self-defence or | | | | 98/34/EC as: |
| contributory negligence etc. | | | | 2). "service": any Information Society service, that is |
| A detailed discussion of each wrong is necessary as | | | | to say, any service normally provided for |
| to decide the question of imposition of liability on ISP | | | | remuneration, at a distance, by electronic means and |
| in each respective case. However, this is not the aim | | | | at the individual request of a recipient of services. |
| of this article and the author shall endeavor to | | | | For the purposes of this definition: |
| discuss the question of holding ISP liable from its | | | | - at a distance": means that the service is provided |
| jurisprudential point of view. During the discussion | | | | without the parties being simultaneously present, |
| reference will also be made to the EU and American | | | | - by electronic means": means that the service is sent |
| laws on the subject. | | | | initially and received at its destination by means of |
| Requisite for Imposing a Liability on an ISP: | | | | electronic equipment for the processing (including |
| Responsibility follows liability and liability arises out of | | | | digital compression) and storage of data, and entirely |
| responsibility. In order to impose a liability, it is | | | | transmitted, conveyed and received by wire, by |
| necessary to decide whether ISPs can be assigned | | | | radio, by optical means or by other electromagnetic |
| the responsibility of checking the material hosting with | | | | means, |
| them. Where means are not within reach of the | | | | - "at the individual request of a recipient of services": |
| subject, the responsibility automatically gets | | | | means that the service is provided through the |
| frustrated. Therefore, this responsibility is to be | | | | transmission of data on individual re |
| within the powers and limitations of ISPs. | | | | It is interesting to note here that even if the service |
| The question implies a consideration of economical, | | | | provider may have the knowledge of the illegal |
| technological as well as social aspects of the same. | | | | activity or defamatory material, it may not be held |
| Economical Aspects: | | | | responsible if the illegal activity has been removed or |
| Information over the internet is very dynamic and | | | | access to information has been disabled. |
| the owner of websites are at liberty to change the | | | | Furthermore, under Article 15 of the same directive, |
| contents every moment and in most of the cases it | | | | the member States are also debarred from imposing |
| also happens so. Secondly the size of the information | | | | any general liability on ISPs to monitor the content |
| hosted with the ISP is in terra bytes and it may | | | | hosted with them. |
| scrutinize several months. Even if the ISPs higher | | | | American Law-Digital Millenium Copyright Act: |
| enough human resource to keep a track of ever | | | | In America, the liability of intermediaries over the |
| changing information over the internet (although it is | | | | internet is regulated by Digital Millenium Copyright Act |
| next to impossible), the cost of the same is going to | | | | of 1998 |
| touch sky. The burden will automatically going to be | | | | Section 512(c) limits the liability of service providers |
| shifted to the consumer and thus ultimately resulting | | | | for infringing material on websites (or other |
| in an obstruction to free flow of information. | | | | information repositories) hosted on their systems. It |
| Technological Aspects: | | | | applies to storage at the direction of a user. In order |
| ISPs are not yet equipped with requisite technology | | | | to be eligible for the limitation, the following conditions |
| to avoid the violations over the internet. This requires | | | | must be met:o The provider must not have the |
| high-tech language and image processing and surely | | | | requisite level of knowledge of the infringing activity.o |
| the technology is so far not that advanced to cop | | | | If the provider has the right and ability to control the |
| with the problem by embedding technological | | | | infringing activity, it must not receive a financial |
| measures in the servers of ISPs. | | | | benefit directly attributable to the infringing activity.o |
| Social Aspects: | | | | Upon receiving proper notification of claimed |
| By assigning a responsibility to ISPs to monitor the | | | | infringement, the provider must expeditiously take |
| content hosted with them, we may empower ISPs | | | | down or block access to the material. |
| with an unjustified power of censorship and ISPs | | | | In addition, a service provider must have filed with |
| may ultimately get into a position from where they | | | | the Copyright Office a designation of an agent to |
| can regulate the information over the internet | | | | receive notifications of claimed infringement. The |
| according to their own wishes and whims. These ISPs | | | | Office provides a suggested form for the purpose of |
| may become judicial institutions while deciding which | | | | designating an agent ( and maintains a list of agents |
| information is to be published and which is not. | | | | on the Copyright Office website ( |
| Secondly, the flow of information over the internet | | | | The terms "actual knowledge", "information society |
| may become very slow and ultimately result internt | | | | services" and "expeditiously" have their own judicial |
| as a static world and society thereby lose its interest | | | | meanings and require separate and detailed |
| in the same causing the whole web to fall down. | | | | elaboration. However, the space does not allow |
| It is important to note here that the internet is | | | | author to go into the details of these terms. But it is |
| totally different from paper world where publishers | | | | note worthy that the idea behind both the legislations |
| can easily scrutinize the contents of publication. | | | | is same and that is to hold ISPs liable only if they |
| Internet is meant to be a dynamic world where | | | | have the "actual knowledge" of the infringing material |
| information is updated every next moment. Without | | | | and fail to disable access to same expeditiously. |
| this ability internet will no more be of interest. | | | | The actual knowledge criterion as opposed to |
| In view of the above discussion it is very clear that | | | | constructive knowledge does not generate much |
| we cannot assign this responsibility to ISPs in this | | | | ambiguity, as it is a well-established principle within the |
| regard and we have to find different solutions while | | | | member states that actual knowledge means that |
| compromising with the situation. | | | | the defendant actually knew about the infringing |
| What is the Basic Idea: | | | | material. It is also pertinent to mention here that the |
| One point to start the process of thinking can be | | | | actual knowledge criteria may also shift the burden of |
| with the question, what we really want. Is this the | | | | prove on the plaintiff, where plaintiff may be required |
| imposition of liability on ISP what we really want. Is | | | | to prove the actual knowledge of the ISP about the |
| this a goal or a mean to achieve some other more | | | | infringing activity or information. |
| specific goal? | | | | While concluding the above discussion it can be said |
| This question maybe differently answered by | | | | that the limited liability imposed on ISPs is |
| different stakeholders. From the perspective of | | | | well-justified and serves the purpose without |
| copyright owners, the answer is simply a "YES'. | | | | obstructing the free flow of information and |
| Because they want to be compensated for the | | | | damaging the theme of internet. However, one must |
| damage caused to them by the unauthorized | | | | not forget that nothing is permanent in this dynamic |
| publication of copyrighted material over the internet | | | | world except change, and therefore, as the |
| where copying is just a matter to on click. Usually the | | | | technology emerges new solution to the said problem |
| person actually publishing the copyrighted material | | | | may be proposed. One aspect of which can be |
| over the internet is an ordinary person who is not so | | | | embedding of technology into the ISPs servers in |
| wealthy to compensate the loss done to the owner | | | | order to detect the copyrights infringements by the |
| of copyrighted material and therefore, the copyright | | | | material being hosted on them and therefore, |
| owner will be more interested in suing the respective | | | | restricting the publication of the same. The digital |
| ISP who is usually a rich company and much can be | | | | certificates may also be considered as a useful mean |
| recovered from it. | | | | to avoid infringements in this regard. |
| However, the idea is not to hold ISPs liable but to | | | | |