Liability of ISPS for Content Hosted by Them
Our society has now evolved as an Information Society. Now the paper based newspapers are being replaced by the dynamic websites, which are sometimes being managed by intelligent agents. Where at one hand where this evolution has brought us the knowledge explosion and now access to information is easier than ever before, on the other hand new issues have also emerged and legislator is confronted with new challenges. One of these issues is the question regarding liability of intermediaries (ISPs) for the infringements over the internet.
There are no boundaries and anything which is published on internet becomes worldly public the next moment. This ease of worldwide publication has invoked new threats to the society as well. It has SIEMENS VS06G2410 disturbed the whole system of copyrights, civil liberties, protection against ethnic and religious exploitation, law of defamation, child pornography and cyber-terrorism. In such a situation it may not be easy to let ISPs go without any liability for the material hosted on them. However, at the same time it may also not be an easy task for the ISPs (even if they want to do so) to keep a check on all the materials hosted with them. The situation becomes even more trivial when it comes to territoriality of law. The situation is yet be addressed by the legislator in Pakistan. This article is an attempt to highlight the issues concerning the liability of ISPs consequent to the material hosted by them and remedies adopted by the Europe and America.
What is an ISP: In general Internet Service Providers (ISP) perform various functions and offer a variety of services like access to internet, hosting of information on internet, network services etc. EU Directive 2000/31/EC has defined service providers as any natural or legal person providing information society services. The term “information society services” is further elaborated in Article 1(2) of the Directive 98/34/EC as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. However, for the purposes of this article only the aspect regarding hosting of information on the internet will be discussed.
Nature of Liability of ISPs:
It is important to understand that ISPs are usually not a direct beneficiary of the crimes/civil wrongs committed by their subscribers. They are usually remunerated for their services regardless of the content published over the internet.
There can be two instances of liabilities for the material hosted on internet: i. Criminal Liability:
Criminal liability of ISPs may arise out of the crimes committed over the internet. These may include child pornography, cyber-terrorism, infringement of copyrights etc.
ii. Civil Liability:
Civil liability refers to instances where ISPs may be sued by private persons or organizations for infringements of their civil rights. Instances of civil liability may include an action for defamation, copyright infringement etc.
Both criminal and civil liabilities have their own requisites, which sometimes also vary in a great deal for specific wrongs.
In order to constitute criminal liability two elements are very necessary to be there:
i. “Mens Rea” : Mens rea refers to a guilty mind. In order to constitute a person liable for a criminal wrong it is important to establish that the act was done with an intent to do it in a harmful way. However, the requirements to establish “mens rea” vary according to the definition of wrong. It purely depends on the ingredients of a specific crime that what may constitute mens rea. It ranges from an act done recklessly to the clear dishonest intentions.
ii. Actus Rea: Along with a guilty mind the presence of actual act is also necessary. This act can be an act of abetment or helping and aiding a crime or can be actual commission of the crime.
Unlike a criminal act, a tort does not require the presence of guilty Big River homes mind and it may be a tort may sufficiently be proved if the commission of an act falling under the definition of a tort (or a civil wrong) has been proved.
Of course, there always exist the exception to both criminal and civil wrongs and one has the defenses warranted by law. Like an act done in self-defence or contributory negligence etc.
A detailed discussion of each wrong is necessary as to decide the question of imposition of liability on ISP in each respective case. However, this is not the LG 32PC52 aim of this article and the author shall endeavor to discuss the question of holding ISP liable from its jurisprudential point of view. During the discussion reference will also be made to the EU and American laws on the subject.
Requisite for Imposing a Liability on an ISP:
Responsibility follows liability and liability arises out of responsibility. In order to impose a liability, it is necessary to decide whether ISPs can be assigned the responsibility of checking the material hosting with them. Where means are not within reach of the subject, the responsibility automatically gets frustrated. Therefore, this responsibility is to be within the
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