Tuesday, April 05, 2011

Week 7: Liability of ISPs and Infrastructure Providers

This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?

Should such intermediaries be liable for the actions of others?

The main reading for the class is the iiNet case:

2 comments:

Michele said...

I have to say when I read this case, it seemed at times Justice Emmett was reluctant to show any iiNet love.

It will be interesting to see any further cases that refer to Justice Emmett’s “roadmap” to establishing authorisation through failure to suspend accounts etc. Some could argue it’s almost a roadmap to give your argument some real force against an unwitting ISP in the future.

The question is - how realistic is it to impose regulations upon organistaions to do whatever in their power to stop infringement of other people's copyright. How does an ISP capture that kind of information to start with and then just as Justice Emmett points out - the infringed party would have to indemnify the ISP for the ISP to be willing to go the extra mile.

If the ISP is not sued by the infringed party (through this avenue) they could very well be sued by a user who's account was suspended due to concern surrounding the use of the account by an ISP worried of an even greater law suit. Where's the happy medium?

Jill said...

On the one hand, it seems unreasonable to expect ISPs and infrastructure providers to have the time and resources to actively monitor activity on their sites, given the large volume of internet traffic these days, although they should make some effort to do so. In cases where they were not aware of any illicit activity taking place, they should not be held liable. However, when they are put on notice by a person or organisation whose rights are being infringed, that is a different matter. In those circumstances, they should take steps to remove offending material or to close offenders' accounts, if necessary, provided the complainant makes out a prima facie case. It is not really good enough for ISPs to completely absolve themselves of responsibility, but provided they take reasonable steps to monitor activity and to remedy any obvious wrongdoing, they should not be held liable.