1. Other laws applying to ISPs
Apart from being regulated under the telecommunications legislation and associated industry codes, ISPs (includes internet content hosts and internet access providers) are affected by common law defamation, copyright legislation and broadcasting services legislation.(1)
2. Defamation
Any person who participates in the publication (or republication) of defamatory material can be held liable. An ISP involved in publishing (or republishing) defamatory material on the internet may be liable for prosecution.
While there is no clear authority, it is likely an ISP without more would be treated as a mere distributor of material unless it can be demonstrated the ISP knew or ought to have known of the defamatory material which has been uploaded using their service.
Generally subordinate distributors (such as an ISP) will not be found liable if they did not know the publication was defamatory and this lack of knowledge was not due to any negligence on their part. Reasonableness is a relevant factor in determining whether an ISP has been negligent in failing to monitor material posted on its bulletin boards. Given the large volume of material and the speed such material is posted to bulletin boards, ISPs could argue it is an unreasonable burden to monitor all such material.
The issue of what is reasonable in determining negligence becomes straightforward when an ISP becomes aware of defamatory material posted on its bulletin boards and fails to remove that material within a reasonable time of notification. Once an ISP becomes aware of defamatory material, it is likely to be held liable if it fails to remove it.
ISPs are potentially protected from liability for providing access to or hosting defamatory internet content under broadcasting services legislation.(2) The defence only applies to internet content and expressly excludes ordinary electronic email and information transmitted in the form of a broadcasting service. The defence is not available if the ISP is aware of the defamatory nature of the internet content which it provides access to or hosts.
An ISP will be deprived of the defence once put once put on notice of the fact they are providing access to or hosting internet content which is defamatory.(3)
3. Copyright
An ISP is not taken to have authorised any infringement of copyright in a work merely because it provides the facilities by which the infringement took place.(4)
The defence under the broadcasting services legislation (discussed above) would be similarly available to an ISP in relation to a copyright infringement unless the ISP:
(a) had the power to prevent the doing of the act concerned, but failed to do so;
(b) had some relationship with the infringer in a way which indicates the ISP knew of, encouraged or condoned the infringing act; or
(c) took no reasonable steps, or inadequate steps, to prevent or avoid the infringement.
An ISP will still be liable for copyright infringement if it exercises any of the exclusive rights of the copyright owner, including communication to the public, but only if it determines the content of the communication.
An ISP that merely provides Internet connectivity will have little or no control over copyright material accessed through that connection. Provided the ISP does not directly host copyright infringing material on its server and has no relationship with a person who places material on a website (accessed through the connection), its liability is correspondingly limited.
ISPs have greater control over websites hosted on their own servers and will need to consider taking reasonable steps to avoid liability for authorising copyright breach in respect of those websites.(5)
4. Moral Rights
ISPs may encounter similar problems of indirect liability with moral rights as already experienced with defamation and copyright (discussed above).
Each time a work is hosted, sent or received an attributable act would be deemed to have occurred. Where the original infringer of moral rights cannot be located, a person may find it easier to sue the ISP on whose network the work was hosted or passed through.
The defence under the broadcasting services legislation (discussed above) applies here. The ISP will not be liable provided it is not aware of providing access to, or hosting internet content which infringes the moral rights of the author.
When an ISP becomes aware of illegal or infringing material accessible by, or hosted on their service and take no action to remove it within a reasonable time, the defence may not apply.
An ISP may also defend a moral rights prosecution by claiming the unreasonable cost involved in identifying the author.
5. Prohibited Internet Content
ISPs are subject to the online services laws set out in the Broadcasting Services Act 1992 (Cth) Sch 5 and the Internet Industry Codes of Practice. An ISP is not liable for providing access to or hosting prohibited Internet Content (defined above) on the Internet if not aware of that content.
An Australian resident or Australian company may complain to the Australian Broacasting Authority (ABA) about objectionable internet content. If the ABA issues a take down notice to the ISP concerning that content, the ISP must comply with the notice by 6pm the following business day. Substantial fines apply to any failure to comply with the notice.
Other relevant Articles on this site:
Link or frame a website
Copyright protection of content
Moral right protection of content
Defamation
Content regulation
Other relevant Fact Sheets:
Copyright
Defamation
Moral Rights
Online Content Regulation
End Notes
(1) See amendments to Broadcasting Services Act 1992 (Cth) introduced by Broadcasting Services Amendment (Online Services) Act 1999 (Cth); Copyright Act 1968 (Cth)
(2) Broadcasting Services Act 1992 (Cth):
A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or
(b) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or
(c) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content; or
(d) requires, or would have the effect (whether direct or indirect) of requiring an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider.
(3) M Collins Communications: New twist to liability for defamation on the internet (2000) 38 (6) LSJ 71.
(4) Copyright Act 1968 (Cth) sections 39B, 112C
(5) Copyright Act 1968 (Cth) sections 39B, 112C