“A COMPARATIVE STUDY OF

LAWS GOVERNING ISP

LIABILITY IN UNITED STATES,
EUPOREAN UNION AND INDIA.”

DEBMITA MONDAL
ROLL- 883016, BA LLB, KIIT LAW
SCHOOL
 INTRODUCTION
• Internet Service Provider (ISP)  a company that provides
Internet services, including personal and business access to the
Internet, by usually providing a software package, username, and
password and access phone number at a certain amount of rental
fees.

• ISPs often give their clients the right to upload files to the ISP's
publicly accessible servers. Such files can be accessed, viewed,
copied or even downloaded by general public.

• The standards for liability of a service provider can be fixed only

when the role, position, authority and limitations of a service
provider are clearly understood.
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 ANALYSIS OF LAWS
GOVERNING LIABILITY OF
INTERNET SERVICE
PROVIDER (ISP) IN UNITED
STATES

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 Liability of ISPs as publisher of defamatory content
• Section 230 of The Communication Decency Act of 1996 (Title 5 of
Telecommunications Act of 1996 ) 
“No provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another
information content provider.”

• Rationale behind : to encourage them to develop policies for

monitoring and removing offensive material from their servers
without the fear of being penalized as a publisher of such defamatory
content.

• The scope of this Communication Decency Act of 1996 is limited and

does not extend to criminal liability and liability for infringement of
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intellectual property rights of others.
 Zefran v. American Online Inc 129 F.2d 327
(1997)
• American Online Inc. (AOL) was a computer service provider in
whose bulletien certain defamatory advertisement posts were made
under the plaintiff Zeran’s name regarding sale of T-shirts with
offensive quotes.

• Court held : Once an ISP is found receiving notice of potentially

defamatory posts, it is thrust in the role of an publisher of such
defamatory content and therefore it cannot be claimed such ISP acted
as distributors and is not exempt from liability under CDA ACT of
1996.

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 Liability of ISPs under Intellectual Property
Laws:
• Before DMCA , court had found bulletin board services liable for
direct copyright infringement regardless of the fact whether such
infringement was intentional or not. (Playboy v. Frerna 839 F. Supp.
1552(M.D.Fla. 1993)

• Digital Millenium Copyright Act (DMCA) amended Title 17 of the

United States Code to extend the reach of copyright, while limiting
the liability of the providers of on-line services for copyright
infringement by their users.

• Title II (Online Copyright Infringement Liability Limitation Act) of

the DMCA act (OCILLA) is also popularly “Safe Harbour” provision
or as "DMCA 512”.
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 Continued…
• The Act limits liability of internet service
provider for a range of activities including
- transitory digital network communications,
system caching,
- unwittingly linking or referring users to sites
containing infringing materials, and
- the unwitting storage of copyright-violating
material on their systems
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 Prerequisites for exemption from liability
[Section 512 (c) (1) the DMCA ]:
• Provides exemption to ISP when
- No actual knowledge that the material or an activity using the material
on the system or network is infringing
- expeditiously remove or disable access to the material upon obtaining
such knowledge .
- Gain any financial benefit directly from the infringing activity.

• The safe harbor provisions do not require the service provider to

notify the individual responsible for the allegedly infringing material
before it has been removed but after removal notice is to be given to
ensure that copyright owners do not wrongly insist on the removal of
materials that actually do not infringe their copyrights. (take down
and notice clause) 8
 Counter-notice [17 U.S.C. § 512 ( g)]
• On counter-notice from subscriber, the service provider must then
promptly notify the claiming party of the individual's objection.
• If the copyright owner does not bring a lawsuit in district court within
14 days, the service provider is then required to restore the material to
its location on its network.

• Contents of counter-notice.

• If the copyright has holder misrepresented its claim regarding the

infringing material, the copyright holder then becomes liable to the
ISP for any damages that resulted from the improper removal of the
material. [17 U.S.C. § 512 ( f)]

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 Technology Center v. Netcom Online Communication
Services, Inc 907 F.Supp. 1361 (N.D. Cal. 1995)
• Issue : Whether Netcom was liable for documents (which contained
published and unpublished works of Church of Scientology) as posted
by its subscriber Erlich?
• Erlich was the actual infringer in this case  Netcom cannot be
convicted for direct infringement of copyright.
• Netcom was not convicted for vicarious liability  the link between
the infringing activity and Netcom’s finances were not sufficient. It
did not have the right and ability to control such infringing activity.
• For contributory infringement it has to be proven that though the
actual posting was done by a third party, ISP facilitated or induced
such posting. (Issue not dealt)

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 Perfect 10 v. Google, Inc., et al., 416 F. Supp.
2d 828 (C.D. Cal. 2006)
• Linking and Framing issue: , Copyright law does not protect a
copyright holder against acts that cause consumer confusion.

• Distribution right : not violated because there was no actual

dissemination of the full size images to the user's computer.

• Thumbnails: a transformative use because Google's search engine

promotes the purposes of copyright and serves the interests of the
public.

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 Continued…
• Contributory infringement: Google did not facilitate
infringement because infringing websites existed long before
Google Image Search was developed and would continue to
exist were Google Image Search shut down.

• Vicarious liability : though Google benefited from the

advertisements directly but it had to power to stop such
infringers and therefore injunctive relief was denied in that
case also.

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 ANALYSIS OF EUROPEAN
UNION LAWS GOVERNING
LIABILITY OF ISP AS
INTER-MEDIATORY.

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 European Union E-commerce
Directive(2000/31/EC/)
• creates a “safe haven” regime whereby providers of hosting, caching
and mere conduit cannot be held responsible under certain conditions.

• Scope of the directive  wide  apply to all kinds of illegal material

provided by third parties, including copyright, trademark, defamatory
statements, pornography, etc and the type of liability of not limited to
only to civil but also to criminal liability.

• the liability limitations apply only to damages liability and therefore

the Directive does not prevent injunctions from being imposed upon
on-line intermediaries.

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 Continued…
• Mere conduit: Article 12 (Mere Conduit) of E-
commerce Directive (2000/31/EC/)

• Caching: Article 13 of E-Commerce Directive

(2000/31/EC)

• Hosting : Article 14 of E-Commerce Directive

(2000/31/EC)
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 L’Oréal SA and other v. EBay International AG
and others [2009] All EWHC 1094 (Ch)
• Article 14 exemption not available if host of webpage played an
active role of such a kind as to give it knowledge of, or control over,
the data relating to those offers for sale.

• If the hosting provider did not play active part then : firstly, had actual
knowledge of illegal activity or information, secondly, was aware of
facts or circumstances from which the illegal activity or information
is apparent and lastly, a diligent host would have realized that the
content in question is unlawful.

• Courts are able “to order an intermediary to take measures which

contribute, not only to bringing to an end infringements of those
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rights […], but also to preventing further infringements
 European Copyright Directive

• Article 8 (3) which reads : “ Members shall

ensure Right holders are in position to apply
for injunction against inter-mediataies whose
services are used by third party to infringe a
copyright or a related right”.

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 The Digital Economy Act 2010

• copyright infringement report. [Section 3]

• copyright infringement list [section 4]
• A fine of up to £250,000 can be levied on
ISPs. [ section 14]
• the power to make provision about injunctions
preventing access to locations. [section 17]

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 A STUDY OF INDIAN LEGAL
REGIME GOVERNING
LIABILITY OF ISP AS
INTER-MEDIATORY

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 The Copyright Act , 1957
• The Copyright Act does not expressly deal cover the liability of
internet service provider but the same can be read into under Section
51 read with Section 2 (ff) of the Copyright Act, 1957.

• Section 51 (a) (i) lays down the provisions for direct infringement of
copyrighted material and for an ISP to be held liable for direct
infringement under this section it has to be proved that ISP exercised
certain degree of control or had a supervisory role in the infringing
activity.

• Copyright Amendment Bill 2012 has expanded the scope of Section 2

(ff) [communication to public] and it now includes not only
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copyrighted works but also performances.
• “Communication to public” as defined under Section 2 (ff) of the
Copyright Act, 1957 is as “making any work available for being seen
or heard or otherwise enjoyed by the public directly or by any means
of display or diffusion other than by issuing copies of such work
regardless of whether any member of the public actually sees, hears or
otherwise enjoys the work so made available.”

• So an ISP can be held liable under Section 51 (a) (ii) for

communication to public of infringing material only if it is proven
that the ISP was "aware" and have "reasonable ground for believing"
that copyright infringement is being carried out but still permitted a
place for the infringing communication and such communication was
for profit.

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 The Information Technology Law Act, 2000

• The Information Technology (Amendment) Act, 2008

amends definition of inter-mediataries and at present it
includes telecom service providers, internet service
providers, web-hosting service providers, online payment
sites, search engines, online auction sites, online market
places, cyber cafes, etc..

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 Exemption from liability
• Section 79 (2) :
• the role of the inter-mediatary should be limited to providing
access to communication system where such third party
information is stored temporarily or transmitted;

• secondly, the inter-mediatary should not in any way initiate the

communication, select the receiver of such communication or
select and modify the information contained in such
communication.
•
• must exercise sufficient due diligence while discharging his
duties under this act and also has to follow such other guidelines
as issues by the Central Government.
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 Section 79 (3) No exemptions if :
• intermediary has conspired or abetted or aided or induced by threats
or promise or otherwise in the commission of the unlawful act .

• even if after receiving actual knowledge, or on being notified by the

appropriate Government or its agency that any information, data or
communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful
act, the intermediary fails to expeditiously remove or disable access to
that material on that resource without vitiating the evidence in any
manner.

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• Section 81 of the IT Act states that Section 79
shall not restrict anyone from exercising rights
granted under the India Copyright and Patents
Act while Section 79 (1) contains a non-
obstante clause notwithstanding anything
contained in other law for the time being in
force’.

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www.brainybetty.com
 Myspace v. Super Cassette India Ltd 2011 (47) PTC 49
(Del.)
• ‘actual knowledge’  the defendants had specific knowledge of the
plaintiff’s works since they were provided a list of their titles and
updated works from time to time.

• Myspace had dispensed with its required obligation of carrying out

necessary due-diligence by providing for the three tools for anti-
infringement purposes (“Hash Block Filter”, “Take down stay
down” and “Risk Management tool”) was turned down by the
Court. The Court added that if any due-diligence is required, then
that has to be at the pre-infringement stage.

• Section 81 acted as a proviso to Section 79 and the non-obstante

clause contained therein has an overriding effect. 26