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.
