The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive is implemented in the UK by the E-Commerce Regulations.
In 2008 the Criminal Justice and Immigration Act extended the offence of stirring up hatred on the grounds of religion to include the stirring up of hatred on the grounds of someone's sexuality. That Act amended 1986's Public Order Act.
The change to the Public Order Act required a new set of Regulations reflecting that change in the exemptions enjoyed by service providers. The Government's draft Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations contain those changes and will replace 2007's The Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations.
"Articles 12 to 14 of the [E-Commerce] Directive require the UK to limit, in specified circumstances, the liability of intermediary service providers who carry out certain activities essential for the operation of the Internet, namely those who act as 'mere conduits' and those who 'cache' or 'host' information," said a Government explanatory note to the proposed Regulations.
"In the Government’s view there may be scope to argue over whether conduits, caches and hosts could ever have the necessary intent to stir up religious hatred or hatred on the grounds of sexual orientation and so Regulations 5 to 7 of these Regulations create specific exceptions from liability for the new offences for mere conduits, caches and hosts in the circumstances set out in the Directive and reflected in the E-Commerce Regulations," it said.
"In practice, intermediary service providers are very unlikely to be liable for the offences because of the requirement for intent. However, the 2007 Regulations clarified the position regarding the liability of conduits, caches and hosts in respect of the religious hatred offences. That aspect of those Regulations, which these Regulations revoke and replace, was considered by intermediary service providers to be of real significance," said that explanatory note.