The ISP Association is lobbying against a clause in a UK bill which
bans tobacco advertising and describes ISPs as publishers of the
information they host, contrary to the approach taken by the
European E-commerce Directive which describes them as mere conduits
of information.
The Tobacco Advertising and Promotion Bill makes anyone who
publishes a tobacco ad, or causes one to be published, in the UK,
guilty of an offence. It provides defences, including:
"In relation to a tobacco advertisement which is published or
caused to be published by electronic means by an internet service
provider, it is a defence for him, if charged with an offence… to
prove that he was unaware that what he published or caused to be
published was, or contained, a tobacco advertisement."
The ISPA told OUT-LAW.COM that it supports the bill in
principle, but that the reference to ISPs as publishers is "not
helpful". A source who did not wish to be named said another of the
defences in the Bill gave sufficient protection to ISPs without the
need for an ISP-specific clause which fails to understand the
approach of the E-commerce Directive, adding that the ISP defence
only “causes more confusion, fails to provide a strong defence and
is contrary to the Directive”.
The other defence in the Bill, which the ISPA says would cover
ISPs, states:
"…it is a defence for a person charged with
an offence… to prove -
(a) that he was unaware that what he
distributed or caused to be distributed was, or contained, a
tobacco advertisement,
(b) that, having become aware of it, he was not able to prevent its
further distribution, or
(c) that he did not carry on business in the UK at the relevant
time."
The E-commerce Directive, which is due to be implemented in UK
law by 17th January 2002, refers to ISPs playing a passive role as
“mere conduits” of information from third parties – not publishers
- and therefore not liable for the material on their sites, unless
they fail to act when alerted to illegal material. The ISPA’s
concern is that the wording of the Bill runs against this
notify-and-remove approach.
The Tobacco Advertising and Promotion Bill.
