In the United States, one of the Acts which provides the liability for the ISPs is the Digital Millennium Copyright Act 1998. This Act governs the liability of the Internet sites and ISPs for the copyright infringement of its user. It provides a mechanism for copyright owners to force site owners and ISPs to remove infringing material. For example, You-Tube which is an ISP as restricted by the Act have the right to remove any illegal post or unauthorized copy that are posted from its site.
When discussing about the liability for the ISPs, some of the cases which can be referred is the Netcom case and Sega Enterprises v. Maphia . These two cases are quite relevant to our topic which concerned the nature of You-Tube. In the Netcom case, the court held that the ISP is only liable for the contributory infringement and not under the direct infringement as the ISP uses an automatic pass-through of allegedly infringing messages posted by its subscriber. To pass under the contributory liability, the court decided that there must be a direct infringement, to which the contributory infringer, which in this case was Netcom, has knowledge and encourages or facilitates the illegal act. The court in the subsequent Sega v. Maphia case held that a BBS (Bulletin Board Service) and its system operator liable for contributory infringement for both the uploading and the subsequent downloading of copies of Sega’s video games by users where the system operator had knowledge that the infringing activities was going on through the bulletin board. In Sega’s case, the claim under direct liability was also refused by the court on the basis that the operator (Maphia) had not participated in the very acts of uploading or downloading themselves.
The element of knowledge must also be fulfilled to succeed under this claim. If the operator does not have any knowledge about the infringing materials post on its site, no liability can be charged upon the ISPs. In short, the requirement of knowledge may eliminate contributory liability on the part of ISP or BBS operator with respect to many instances of infringement for which ISP or BBS merely a passive information conduit and has no knowledge of the infringement.
To date, issues on copyright infringement in Malaysia is governed by the Copyright Act 1987, Australia on the other hand is governed by the Australia’s Broadcasting Services Amendment (On-Line Service) Act 1999. The Act was forced in the summer of 1999 by the Australian parliament but it only takes effect on 1st January 2000. The Act enjoins the Australian Broadcasting Authority (ABA) as the government body which will scrutiny the particular contents which are going to be posted online. Under the ABA, there is a Classification Board which will do the task of filtering and classifying the Internet contents besides react to the complaints regarding the infringement.
According to the Act, ABA will take action on the ISPs by providing a take-down notice if they are detecting any prohibited content on the Internet hosted by the ISPs in Australia. The ISPs ought to comply with the notice within workdays and if they failed to take any reasonable actions and measures to assure that the prohibited contents are not reappearing on their server, they are liable to be fined up to A$ 27,500 per day which is a heavy sanctions!
The Act also provides the situation whereby if the prohibited contents are uploaded on the Internet but they are hosted outside of Australia, the ISPs in Australia which offered the access to the contents will be given a notice demanding to take all reasonable means to block access to the contents or to block the contents according to the relevant rules of a (business) code. After complying with the notices sent to them, the ISPs will have to follow the information duties and procedures which are laid down in the codes of practice otherwise they will face the sanctions.
Liability for a defamatory statement may also be extended to an ISP under the principles of vicarious liability or because, in providing online access facilities, the ISP is directly liable as a publisher or disseminator of the offending statement.The fundamental basis of defamation liability is the publication of untrue information. The liability to be imposed is based on the damage to the reputation of the person referred to in the information that is then disseminated to others. The case of Godfrey v Demonis the first UK case to find a responsibility on the part of an ISP in regards to defamation. In this case, the defendant, an ISP was sued for a defamatory statement carried in a newsgroup hosted on its server. The court held that because Demon chose to receive and store the newsgroup, and had the power to delete the messages from it; it was therefore considered as a publisher and is subjected to any specific defences under the Defamation Act 1996. However, in the case of Cubby Inc v Compuserve Inc, it was held that an ISP’s chosen mode of activity in passing on information from third parties unmodified and unexamined rendered it more like a distributor than a publisher and thus not liable for allegedly defamatory statements made by a subscriber in posting to news group.
The difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.
According to Chris Reed and John Angel (2000, Computer Law, 4th Edition, London, Blackstone Press Limited), "… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author." In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.
The laws governing defamation in Malaysia are including in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.
In Singapore, with respect to the role of ISPs. section 10 of the Electronic Transaction Act protects an ISP from liability from making, publication, dissemination or distribution of third party materials, if the ISP were merely providing access to such materilas. A third party refers, in this context, to a person over which the ISP has no efective control.
When reviewing about ISPs’ liability, the main issue that we should not neglect is the promise of the ISPs and how they are able to keep the promise to provide good and better service for their subscribers. Subscribers will pay for the service provided so what is the consideration given on the part of the ISPs? An Internet Service Provider as discussed in past posts is a company which provides Internet access to its subscribers in exchange for a monthly fee. This has involved a deal of contract between the ISP and its particular subscriber. In contract, parties of it have to abide the obligation agreed upon signing the contact or the legal agreement. Thus, in this situation, we would like to stress that whenever an ISP signs an agreement to provide the Internet access service to its subscriber and receive the required fee, it is to be said that they have to ascertain that the subscriber is able to use their server to access the Internet in all reasonable means.
However, what if one of the subscribers cannot access to the Internet just like what have been promised on the time they made the deal? Is this considered as a breach of contract? What are the rights of the subscribers as they had already paid the fee? This week post will discuss about the contract and fraud liability on the ISPs and focused on a trademark case on this issue.
In the context of ISPs liability, if the above situation occurs, the ISPs are said to be liable to the breach of contract as well as fraud. An agreement made by the ISPs and their subscribers upon receiving the fees is to provide and facilitate their subscribers to have an access to the Internet. Thus, if any of their subscribers cannot be able to access to the Internet and the primary cause of that disability is due to the failure of the ISPs, they are persuaded to claim their right by taking a legal action towards the ISPs as they have breach the contract and committing fraud.
There is an American case (there are no Malaysian cases reported yet) reported regarding this issue on contract and fraud liability by ISPs. Taken from the BitLaw, the case is all about the famous America On Line (AOL) which is one of the biggest ISPs in USA. When AOL announced that it was shifting to a flat-rate billing policy, AOL's proprietary and Internet access services were overwhelmed. Customers who tried to dial in were often greeted by busy signals, and access to the Internet was very slow. Although AOL's performance improved, that did not stop frustrated customers from bringing lawsuits against the company. These suits alleged that AOL knew that their service would be overloaded, but nonetheless went ahead with the flat-rate plan. The suits alleged that AOL was in breach of its contracts with its customers (by not providing the agreed upon service) and had committed fraud by knowingly misleading current and prospective customers. At this point, AOL has not been found liable for its actions. However, the message for ISPs is clear. Deliver on all of the promises you make to your customers, and only promise what you can deliver.
Through the stated case on AOL, it is clearly shown that a contract deal is not to be breached and all the obligations within the contract must be fulfilled based on what has been agreed between the parties. For the purpose of liability on ISPs, we have to be aware that a promise to serve an Internet access is still a contract which needs to be done and any technical difficulties will not be an excuse when dealing with cyber problems.
