Study finds law vague on issues of ISP liability

ISPs open to defamation charges as law provides little protection, says expert

Internet Service Providers remain unprotected in key areas of law — including defamation.

This is the conclusion Dr Judit Bayer, InternetNZ’s first cyber-law Fellow, draws in her recently published research paper on how the law protects — or doesn’t protect — ISPs.

Wellington’s Victoria University has published the research results, in which Bayer says many grey areas still exist in the law covering ISPs’ responsibility for distributing content through their systems.

ISPs have won some small victories, such as a clarification under the 2005 amendments to the Films, Videos and Publications Classification Act. As a result, they can’t be implicated when it comes to offences relating to the distribution of objectionable publications merely because they provided access to the material via their systems. Such material is the responsibility of the third party who placed it there.

However, when it comes to defamation, “it is still not defined [whether an ISP] counts as a publisher” and whether an ISP would therefore be liable for any objectionable statements contained in content it hosted, says Bayer.

Bayer compares the position of ISPs with that of conventional publishers — which would usually be liable for any defamatory content — and bookshops and libraries, whose management cannot be expected to know the content of every publication on their shelves.

In New Zealand, unlike some other countries, the burden of proof rests on the ISP to prove a defence of “innocent dissemination” of defamatory material. The situation has become even more complex with the emergence of multiple levels of information provision. There is now the ISP, the blogging template provider, the main author of an individual blog, and the readers who comment on the author’s remarks.

Bayer draws a distinction between a general discussion forum that is open to everyone — such as a Usenet newsgroup — and a blog, which usually has a main author who functions as discussion moderator and therefore might be expected to carry responsibility for any offending content.

Copyright violation issues have also been considered: InternetNZ suggested to the Select Committee considering the current Copyright Amendment Bill that New Zealand adopt a Canadian-style “notice-and-notice” regime. This suggestion was backed up by Bayer’s study. However, the committee chose to back the stricter “notice-and-take-down” regime. This makes ISPs responsible for judging whether an alleged breach of copyright is well-founded.

A “notice-and-notice” regime allows ISPs to back out of any dispute, leaving resolution up to the person who placed the content on the site and the alleged copyright owner.

Bayer also found that the increasing amount of streaming video now being distributed through ISPs is still not properly legally defined — as either a “broadcast” or a “publication”.

Broadcast content is usually regulated more strictly than print. Bayer also considered the question of whether the Privacy Act really covers internet-related activities, as when it comes to online content, it can be hard to identify who or what is the “agency” that holds any private data.

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