Navigating the web 2.0 safe harbor

August 5, 2008

One of the key elements of web 2.0 is that content is created by the users, and not the service provider (“SP”) (hence, user generated content, or “UGC”). This presents the risk that a SP could be liable for content which it hosts but did not create. Liability could be for infringement of intellectual property, defamation or criminal liability for illegal content.

For SPs who supply web 2.0 platforms, the Electronic Commerce (EC Directive) Regulations 2002 (“the Regulations”) provide considerable comfort. Regulation 19 offers SPs a safe harbor where they will not be liable for content which is hosted by them but which they did not create. The Regulation provides that the SP (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of the storage of information provided by a recipient of the service where the SP:-

(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the SP that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

There are a number of issues that arise from this.

Is there liability at all?

The words “if he otherwise would” in the opening paragraph of Regulation 19 highlight the fact that it is by no means inevitable that a SP is liable for UGC. The Regulations set up a defence to any liability that there may be.

Following CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013, one could argue that where an online service can be just as easily used for lawful as well as unlawful activities, the provider of the platform should not be vicariously liable for the unlawful actions of its users.

In Bunt v Tilley & others [2006] EWHC 407 (QB), which concerned the liability of the SPs AOL, BT and Tiscali for defamation, the court decided that an SP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. Notwithstanding this finding, the court went on (obiter) to address alternative arguments under the Regulations and agreed that the SPs would not anyway be liable for hosting the publications in the light of the provisions of Regulation 19.

Identifying the culprit

The Regulations do not provide any defence to the user who generated the content. However, the injured party may not know the identity of the user as he/she may go by a pseudonym.  The issue then is whether the SP can be compelled to provide details of the user’s identity to the injured third party.

The power to make a Norwich Pharmacal order for disclosure of an anonymous user’s identity is discretionary. In Totalise PLC v The Motley Fool Ltd [2001] EMLR 750 Owen J identified a number of matters as relevant to the exercise of the discretion: the strength of the claimant's prima facie case, the gravity of the allegations, whether the wrongdoer was waging a concerted campaign against the claimant, the size and extent of the readership, the fact that the wrongdoer was hiding behind the anonymity which the website allowed, whether the claimant had any other practical means of identifying the wrongdoer, and whether the defendant had a policy of confidentiality for users of the website.

In Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB) the Court looked at various allegedly defamatory postings and concluded that some bordered on the trivial and were barely defamatory or little more than abusive or likely to be understood as jokes. In relation to these postings the Court held it would be disproportionate and unjustifiably intrusive to order disclosure of the personal details of the individuals responsible.

Injunction

Regulation 20 makes clear that the hosting defence does not prevent any party applying to a court for relief to prevent or stop infringement of any rights – i.e. seeking an injunction. However, whether an injunction will be granted is another matter.

The English High Court refused to grant an injunction to prevent video footage of Max Mosley, the head of Formula 1 motor-racing, being shown on the News of the World website (Mosley v News Group Newspapers Limited, 9 April 2008 [2008] EWHC 687 (QB)) on the basis that the material was so widely accessible that an injunction would make very little practical difference.   They said that the “dam has effectively burst”.

What is “knowledge”?

In determining whether a SP has actual knowledge for the purpose of Regulation 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant (Regulation 22).

The Regulations actively encourage SPs to “turn a blind eye” to UGC. In fact, Article 15 of the EU Directive prevents members states from imposing on SPs an obligation to monitor content on their services. Ironically, diligent SPs that monitor their sites to mitigate the risk of hosting unacceptable content face a danger that they could lose the defence because they could be taken to have knowledge of the content.

While there have been no cases on what amounts to “actual knowledge”, it is likely that an SP would have knowledge if it monitored the content and decided nonetheless to post it on-line. But it is less clear if an SP could be imputed with knowledge where it had a policy to monitor its content but negligently overlooked the offending item or where it could have implemented technology to filter out objectionable content.

Notice and take down procedure

The notice and take down procedure is not regulated. SPs and industry bodies have had to develop their own voluntary policies on how to operate an effective notice and take down procedure.

The issue is not without difficulty. SPs faced with a take down request are in the invidious position of having to act as judge and jury. If they get it wrong, and don’t remove the content, they could lose the hosting defence and potentially be liable for the content. If they are too hasty in removing content, they could be criticized for restricting freedom of expression and drive users away from their network.

What is “expeditiously”?

How quickly do SP’s have to respond to a notice and take down request?
By not specifying a period in the Regulations, the degree of expedition required will probably vary with the circumstances and seriousness of the issues raised in the notice and take down request. Some guidance can be taken from the Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007. Under these Regulations, SPs have a window of up to two working days from service of a police notice in which to remove material before incurring liability. In the light of this, you could argue that "expeditious" should be at least two working days as it would be odd to require a shorter period for content that is less dangerous than that covered by the Terrorism Act.

In the dispute between Mumsnet, the parenting website, and Gina Ford, the childcare expert who had threatened Mumsnet with defamation proceedings following users’ criticism of her methods, Mumsnet removed the offending content within 24 hours after notification. However, no precedent is set as the matter did not come before the court.

Repeat infringements

An item of content may be cross-posted multiple times. However, the Regulations do not address the issue of whether, in order to benefit from the defence, the SP must take down not only the specific item detailed in the take down request, but also all other copies which it may be hosting.
While there are no English law decisions on this, the High Court of First Instance of Paris in October 2007 in Zadig Productions v Google Inc, decided that where Google had already been notified of the illegal nature of some infringing film content, it must implement such technical means as it can to make sure that the content does not reappear on their site.

Looking ahead

Given mounting pressure over infringing content from rights owners and ongoing developments in filter technology which better enable SPs to block it, the broad defence under the Regulations may not endure long-term. Indeed, in its report “Creative Britain: New Talents for the New Economy" the Department for Culture, Media and Sport signalled that it will consult on legislation that would require SPs and rights holders to co-operate in taking action on illegal file sharing – with a view to implementing legislation by April 2009.  The wild west phase of web 2.0 may be drawing to a close.


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