SCL Media Group Seminar Report: Intermediary Liability

October 17, 2012

This second gathering of the SCL Media Group was hosted by K&L Gates LLP and was attended by a large number of SCL members interested in the latest developments in the ever-evolving law surrounding online intermediary liability. 

Ashley Hurst, partner at Olswang LLP, chaired the seminar and introduced the themes for the evening.  Online intermediaries face increasingly complex issues regarding their liability for the acts of their users and, even absent liability, the lengths to which they are required to cooperate with those trying to enforce their rights.

Dominic Bray, head of the IP, Media and Technology group at K&L Gates, spoke about intermediary liability for defamation.  Determining whether an intermediary can be liable for a defamatory statement made using its service involves complex and technical questions and has been the subject of interesting recent cases at the High Court.  Leaving to one side (for the purposes of the talk) issues about real and substantial torts and jurisdiction etc, the court must first determine whether the intermediary is a ‘publisher’ of defamatory material at common law and, if so, whether there are any defences available under the Defamation Act or the E-Commerce Regulations.  Recent cases involving Google’s service and reviews on Amazon have involved detailed consideration of factual issues surrounding the knowledge and actions of intermediaries, and have resulted in different conclusions on these fundamental issues.  More may be learnt when the Court of Appeal considers Tamiz v Google in December this year.  Alongside developments in case law, the Defamation Bill continues its journey through Parliament with its second reading in the House of Lords on 9 October.  The defence for web site operators who comply with a notice and take-down procedure proposed in clause 5 of the Bill will provide further protection for many online intermediaries but critical details have been left to regulations, which have not yet been published.  There are many questions to be answered about who the process will apply to, how it will work in practice and whether it will change the default position of removing content to avoid liability.

Simon Baggs, head of the IP Rights Protection team at Wiggin, focussed on the latest developments in web site blocking and other measures against copyright infringement.  In relation to the Digital Economy Act, it is expected that the first notices sent by ISPs to subscribers who have been identified by rights owners as illegally downloading material will be sent out in January 2014, once the Code drafted by Ofcom has been approved.  The high-profile Newzbin2 and Pirate Bay cases encapsulate many of the issues faced by rights owners when trying to deal with online infringement, especially in relation to web sites outside the UK.  These cases demonstrate how injunctions under the Information Society Directive and s 97A of the Copyright, Designs and Patents Act can be granted and have established that rights owners do not have to join the web site operators or users when applying for a blocking order.  There will be one hearing to determine whether there has been infringement and whether the ISP should block the web site in question.  Asking the question ‘is web site blocking effective, proportionate and dissuasive?’, Simon presented graphs which were a striking visual representation of the drop in UK use of the Newzbin and Pirate Bay sites once blocks were in place.  There was discussion around the scope for web site blocking to apply in other contexts, such as privacy, so it will be interesting to see if blocking orders are used as a remedy elsewhere.  In Europe, we wait the decision of the CJEU on the reference from the Austrian Court in on questions relating to fairness and proportionality of web blocking, and the important task of balancing the fundamental rights of the various stakeholders in the process (which Arnold J had no difficulty with in Newzbin).

Heather Rogers QC, a media law, human rights and public law specialist at Doughty Street Chambers, spoke about intermediary liability in the context of the protection of privacy and the right to a fair trial.  Starting from the fundamental common-law principle that “where there is a wrong, there should be a remedy”. Heather raised the question of whether in practice ISPs may often be in the best position to provide an effective remedy by removing material.  In relation to claims for misuse of private information, injunctions will be ordered only if there is a certain level of seriousness involved and if the outcome of the balancing exercise carried out between the claimant’s Article 8 and the defendant’s Article 10 rights is in favour of the claimant.  Recent cases have involved questions of how effective injunctions are in the Internet age, and suggest that they are still considered an appropriate remedy despite widespread publication on the Iternet.  For example, when upholding the injunction preventing the publication of Ryan Giggs’ name, the court made it clear that, although his identity was widely known, this did not mean that the injunction did not serve its purpose, as each fresh intrusion into his privacy amounted to a further wrong.  Heather also discussed the right to a fair criminal trial, highlighting recent cases involving breaches of reporting restrictions via Twitter, and questioning the practicality of an instruction to a jury not to look at the Internet.  Whilst contempt of court actions tend to be brought against the original authors of statements, she wondered whether courts might start pursuing intermediaries for an effective remedy.

Mark Gracey, chair of the ISPA, provided helpful insight from the perspective of the Internet industry and an overview of the issues facing ISPs.  There has been a change in how content is being produced, with a movement away from traditional hosting services, usenet and chat sites towards user-generated content on social media sites and blogs.  It was important to remember the different players in this market, including pure access providers, traditional web hosts, web site operators, online forums and those hosting user-generated content.  Mark explained that all of the issues discussed by the previous speakers involve important practical implications for ISPs.  For example, will the notice and take-down defence for ‘web operators’ in the Defamation Bill apply to ISPs?  How burdensome or costly will the obligations under the Digital Economy Act be?  How are ISPs expected to comply with privacy injunctions?  ISPs are also under increased pressure to assume further responsibilities in relation to blocking content hosted overseas (eg in relation to terrorism and copyright infringement), child protection and social media (eg in relation to trolling).  It is clear that legislators are trying to keep up with technological advances, and that policy is being influenced by a variety of groups.  Mark stressed the importance of innovation in the Internet industry and, whilst stressing that service providers do want to do the right thing, it was important that online creativity and innovative business models should not be so stifled by regulation that the UK Internet industry became a worse place to do business.

Frania Cooper is an Associate at K&L Gates: