The Electronic Commerce Directive was transposed into UK law by
the Electronic Commerce (EC Directive) Regulations 2002.
These introduced a “country of origin” principle governing which
country’s laws should be followed by businesses, certain new
information requirements for web sites, rules on commercial e-mail,
and rules on liability for hosting, caching or transmitting content
or communications.
In particular, the Regulations set out the conditions upon which
an ISP avoids liability for damages for caching information, in
order to protect ISPs from responsibility for users’ material over
which they have little control, because they are acting merely as a
conduit.
In general terms they provide that an ISP that hosts a web site
with illegal content is not liable for the content if it is not
aware of its existence (and there is no need to monitor all content
hosted); but if and when it becomes aware of the existence of
illegal material, the ISP must remove it or prevent access to it to
avoid being held legally responsible.
The question is whether the providers of hyperlinks and location
tools – such as search engines and directories – and content
aggregation services should also be protected, given uncertainties
over their liabilities in connecting to copyrighted or defamatory
material.
Austria, Spain, Portugal, Hungary and Liechtenstein have already
extended the limitation of liability to cover these service
providers, and the DTI
is now considering following suit.
It wants to assess whether the existing law is creating problems
for providers of these services and if so, whether an amendment to
the E-Commerce Regulations would be the best way to solve their
difficulties.
The DTI explains some of the problems that may exist.
On copyright: Where a
search engine links to copyright material, the link potentially
helps people to copy that material. As someone can infringe
copyright by authorising another to do an act without the
permission of the copyright owner, the DTI speculates, "it is
arguable that the provision of the link may itself be copyright
infringement."
On defamation: "It is
unclear," says the DTI, "whether the provision of a link to a site
containing a defamatory statement either through a hyperlink or via
a location tool service does in fact amount to secondary
publication." If it does not, there is no liability on Google,
Yahoo! and others; if it does, they presumably need to act quickly
to remove offending links from their indexes.
And contempt of
court: A concern has been expressed to the DTI that
criminal liability may arise where a person in the UK uses a search
engine to link to a foreign site that contains material that would
amount to contempt of court if published in the UK.
There is no mention of trade mark infringement in the
consultation paper, although that is surely a concern for those
providing keyword advertising services.
The consultation also discusses content aggregators, those who
provide subscription services that give access to information which
the aggregators have obtained via agreements with publishers.
Should they be liable for that information? The example from the
DTI is the aggregator of share price information provided by a
stock exchange: is there liability for economic loss if they post
incorrect prices? Again, defamation and contempt concerns arise for
other aggregators.
The consultation paper asks the questions and seeks views rather
than proposing particular courses of action or amendments.
Opinions are sought by 9th September.
