It is a sickening thought that children are being abused to satisfy theproclivities of a few but, with a technology that is capable of not onlyone-to-many, but potential all-to-all communication, the power and virtualanonymity of the Internet offers the potential to perpetuate these unacceptablepractices on an unprecedented scale. To some extent, we have to accept that whenwe open a communications channel, we cannot stop people using that channel tocommunicate. After all, we have regulation prohibiting a range of practices inconventional society, but that does not prevent those illegal activities takingplace – in some cases it merely drives the activity underground making it harderto detect.
The Obscene Publications Act 1959 aims to guard against the publication ofobscene material. Under this Act, any person who publishes an obscene article,or who has an obscene article for publication for gain, even if the gain is forsomebody else, commits an offence.1
An article is obscene if its effect is such as to tend to deprave and corrupta significant proportion of its likely audience. The likely audience in the caseof child pornography – being paedophiles. Whilst it is arguable that paedophilesare already depraved and corrupted it is clear from case law that the offencedoes not necessarily revolve around the corruption of the wholly innocent. InDPP v Whyte [1972] AC 849, Lord Wilberforce’s view was that ‘[the Act]equally protects the less innocent from further corruption, the addict fromfeeding or increasing his corruption’.
The concept of publication is defined widely by the Act. Where an article isstored electronically, publication means transmitting the data. It follows thatmaking obscene images or text available over the Internet constitutes anoffence.
Europe’s leading Web content monitor, the Internet Watch Foundation (IWF)has the removal of child pornography on the Internet as its first priority andoperates a hotline for individuals to report illegal material. This, coupledwith increased police activity using net filtering software to help track downusers trading illegal images online, is sending a clear message to paedophilesthat their lewd practices will not be tolerated. But, whilst it is evident fromrecent events that paedophiles themselves are open to prosecution fortrafficking child pornography, increased public awareness has heightened thedebate over what level of responsibility ISPs should have to bear for materialtheir users post on the Internet. The position is far from straightforward.
ISPs have always maintained that they are ‘common carriers’. Their claimis that they merely channel information as it is transmitted through theirsystems and that, therefore, they should be regarded as analogous to telecomsoperators, who are not held responsible for the content of their customers’calls. The difficulty with this approach is that Web content is somewhat moresophisticated and less transient than is real-time voice transmission.Furthermore, the impact of Web content will change according to the size andconstitution of its unpredictable audience at any given time.
Fortunately, for ISPs, the Obscene Publications Act provides a defence ofinnocent publication where a person proves that he has not examined the articlein question and that he had no reasonable cause to suspect that it was such thathis publication of the article would make him liable to conviction. Thisstatutory defence means that, in most cases, ISPs will avoid any liability forobscene images on their servers provided they do not monitor the content,although with the increased vigilance of the IWF and the police instances ofchild pornography are more likely to be brought to the attention of the ISP,making it harder to show ‘no reasonable cause to suspect’.
The Obscene Publications Act does not specify what an ISP should do when itlearns that it has paedophilic content on its servers but it is clear that itcannot continue to ‘publish’ such material. Other areas of law have howeverprovided recent judicial guidance as to the action an ISP should take when itlearns that it is hosting unlawful material.
In Godfrey v Demon Internet, the first defamation action involving theInternet to come before the English courts, it was held that an ISP will not beresponsible for a posting made by a third party on its server, provided that theISP removes or blocks access to the posting as soon as it becomes aware that theposting is unlawful. The outcome of this case is based upon a statutory defenceunder the Defamation Act 1996 and, strictly speaking, the ruling is confined tocases brought in defamation, and only to cases where the statutory defence isavailable. Demon’s argument that, under the common law, it was not thepublisher of the defamatory posting failed as the court held Demon to be apublisher whenever it transmitted the defamatory posting from the storage of itsown news server to a subscriber who accessed the newsgroup containing theposting.
Despite its narrow focus, it is inevitable that the Godfrey case will beconsidered by any court that has to consider Internet postings in other areas oflaw and, in the future, its scope is likely to be extended beyond the ambit ofdefamation and probably into the arena of obscenity.
Public opinion is largely in favour of putting the onus on ISPs to do more toclean up cyberspace although, under the current legal regime, ISPs are notrequired to monitor actively the material posted on the sites that they host andgenerally they do not monitor content on their servers. Recently, Thus plc (theowner of Demon Internet) put itself forward as the industry champion forcleaning up child pornography on the Internet, by claiming that it would notonly remove offending articles, but that its paedophilic newsgroups would alsobe taking down. Unfortunately, just over a week later, the company admitted thatits promise to remove all illegal content from newsgroups is unworkable. Demonhas now reverted to the ‘notice and take down’ procedure operated by UKISPs, under which illegal material is removed from their servers when the ISPbecomes aware that such material exists.
Technologists claim that the fight against child pornography is beinghindered by Home Office rules which prevent them using samples of digitisedpaedophilia to create effective filters. Until such tools do become available,it seems unlikely that the burden of a full-scale Internet clean-up campaignwill be forced on ISPs as generic tools will find it virtually impossible todifferentiate between, for example, adult pornography which is not generallyunlawful, academic studies on child pornography and child pornography itself.
In an attempt to maintain a consistent approach to Internet activity acrossthe EU, the European Parliament and Council have adopted a Directive onelectronic commerce which should be in force early next year. The Directiveapplies to all Internet traffic and will therefore apply to child pornographycirculated on the Web. Under the Directive, Member States will not be able tomake ISPs responsible for third party content, subject to the conditions that:the ISP does not initiate the transmission, does not select the receiver of thetransmission and does not select or modify the information contained in thetransmission. In this case, the ISP will be classed as a ‘mere conduit’. Itfollows that if the ISP performs any form of editorial function on a particulartransmission, it will be unable to claim the benefit of the defence.2
The Directive also provides similar protection for any service provider whocaches information for the sole purpose of making onward transmission of theinformation more efficient and also for an ISP who stores information at therequest of a service recipient.
As the Directive’s prevents Member States from imposing a generalobligation on ISPs to monitor the information they transmit, the message to ISPsis clear. It is better for them to refrain from checking their servers fordubious messages and images than to try to clear them up, but they must also beprepared to act swiftly to remove illegal material as soon as it is brought totheir notice. As even the most sophisticated expert system currently availableis unlikely to be able to differentiate between acceptable and unacceptablecontent, this imposes a substantial burden on an ISP. In order to operate theprocess effectively, service providers will need sufficient, suitably trainedstaff to deal with a growing number of complaints from an increasingly demandingpublic and to investigate the lawfulness of particular items. Service providerswill, as a matter of course, need to ensure that their terms and conditionsreserve their right to remove entire messages and whole Web sites if they are toavoid liability for breach of contract to their customers and will also need tobe technically and organisationally equipped to act expeditiously if they are toescape liability for server content.
Endnotes
1. Where an article is not obscene but merely indecent other legislation willapply – for example the Protection of Children Act 1978.
2. The position in the United States may differ from that in the Europe as aresult of the recent case Jane Doe v America Online, Inc. (8 March 2001), inwhich the Supreme Court of Florida recognised statutory immunity from liabilityunder 47 U.S.C. § 230 (Communications Decency Act). Section 230 was intended to‘overrule’ the decision in Stratton-Oakmont, Inc v Prodigy Services Co 23Media L. Rep. 1794 (N.Y. Sup. Ct 1995) by giving ‘Good Samaritan’ protectionto ISP ‘publishers’ – these being ISPs who retain editorial control over thepostings over their site. It is noteworthy that the Jane Doe case resulted in a4:3 majority decision. The view of the dissenting judges is that ISPs who do notmonitor are mere distributors and therefore cannot benefit from Section 230whereas the majority say that ‘distributor liability’ is a subset of‘publisher liability’ and ISP distributors are therefore entitled to thestatutory immunity under Section 230. n
Amanda Kearsley is a solicitor at Addleshaw Booth & Co Manchesterspecialising in technology and e-commerce law. For further information see www.addleshaw-booth.co.ukor e-mail aok@addleshaw-booth.co.uk
