"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.