The internet adoption debacle has prompted the government to issue a missive “reminding” UK based ISPs to stay within the law and remove so-called illegal adoption websites once the ISP becomes aware of the same. Both the government action and the reaction of some factions of the ISP industry may be misplaced.
The government appears to have presumed that ISPs host websites. They don’t, although there is one exception to this which is when ISPs use proxy cache servers – these are employed by some but not all ISPs as they are expensive – to copy popular sites (in whole or part) so that their customers can obtain faster access to such busy sites.
Legally, whether it is for copyright infringement, defamation, obscenity or some other regulatory breach (such as the adoption laws), it is difficult to see how an ISP can be liable for the content of sites to which it simply provides access.
However, as and when an ISP hosts the site, i.e. the material is contained upon a site which the ISP controls, then the game changes. The risk for the ISP increases further – as any innocent publication defence is lost – once the ISP is notified of potentially illegal content contained on one of its servers. The position in the US is distinct as there are specific statutes protecting ISPs in this regard. The position in the latest version of the EU directive is also not entirely clear in this area, especially with regard to newsgroups and proxy cache servers.
Accordingly, for the time being proxy cache servers will create problems for ISPs similar to those arising from newsgroups. As Demon discovered in the Godfrey defamation case, if the offending material is on your server and you are notified about it, then you cannot just hold your hands up and say “not me guv”.