The EU's E-commerce Directive of 2000, from which the UK
Regulations are derived, limits the liability of intermediaries
where they host or cache information or act as 'mere conduits' in
its transmission. The Directive's protection for an ISP is fairly
clear; its protection for a search engine is not.
Some EU Member States sought to resolve that ambiguity in their
implementing laws. The Spanish authorities reasoned that search
engines are analogous to hosting services because the service
provider has a lack of control over the content and included
explicit protection for search engines in Spain's national law. It
applied the same reasoning and protection to providers of
hyperlinks and also content aggregation services. Austria and
Liechtenstein also extended their national protections, though
their reasoning was that search engines were more analogous to
'mere conduits' than hosts. Hungary and Portugal also added
extensions for such intermediaries to their national laws.
The Directive required the European Commission to monitor the
Directive's application in periodic reports. Its
first report, delivered in 2003, recommended that all member
states extend the protections afforded to intermediaries.
With no explicit protection in UK law for search engines or
providers of links or content aggregation services, the UK's
Department of Trade and Industry (DTI) sought views on whether it
should make changes. It published a consultation paper in June
2005.
Perhaps predictably, providers of search and content aggregation
services said they want the limitation of liability to be extended.
They fear a court ruling that holds them responsible for failing to
filter, assess or censor the content that they pass on to users.
They claim that the automated processes which are essential to
their operation would not be feasible if they were made responsible
for third party content and they feel vulnerable to actions for
copyright infringement, defamation and even contempt.
Just as predictably, owners of content such as music and films
who are fighting unauthorised uses of their works argue that the
limitation should not be extended any further because it would
further aid those who use and distribute works without permission.
They pointed out that search engines have developed very
successfully over recent years notwithstanding the absence of
liability exemptions.
In its conclusions, published in December, the DTI wrote:
"Although there have been good arguments made both for and against
the granting of an extension of the limitations on liability to
providers of hyperlinks, location tool services and content
aggregation services, the DTI, mindful of its obligation for
evidence based-regulations, has reached the conclusion that there
is currently insufficient evidence to justify any extension to
these limitations."
"In particular," noted the DTI, "there has been no significant
legal action in the UK since the Directive's implementation in July
2002." It added that it had seen little evidence of out-of-court
settlements or notices received by search engines that showed
significant legal uncertainty among providers.
"The second review of the Electronic Commerce Directive by the
European Commission is due in 2007 and the DTI will encourage the
Commission to take on board the important issues raised during this
consultation," it said.
One of the main points raised in its own consultation, the DTI
said, was that in countries that have extended the rights there has
been no significant difference to the legal position of aggregators
and hyperlink providers.
"There appears to be very little evidence to suggest that where
Member States have limited the liability limitation to providers of
hyperlinks and location tool providers it has made any significant
difference," said the DTI's response. "There appears to be very
little case law in these Member States to ascertain their
effect."
Yahoo! is listed among the respondents in the DTI report. Its
main rivals – Google and Microsoft – are not.
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