ISPs Exempt From Hate Charges

28 January 2010, filed under Ecommerce

A new Ecommerce Directive will release internet service providers (ISPs) and similar digital services from liability for sexuality or religion related hate speech communicated across their networks.

The Government approved Ecommerce Directive shall be put into operation throughout the United Kingdom by the Ecommerce Regulations and shall act to protect digital service providers against any liability and responsibility for content they do not monitor or produce but store or circulate to users.

The Regulations are an extension to the Criminal Justice and Immigration Act which in 2008 expanded the offence for causing hatred based on a person’s sexuality.

Articles 12, 13 and 14 of the Ecommerce Directive will operate to limit the liability in certain circumstances of ISPs carrying out actions that are fundamental to the successful functioning of the internet.

Industry experts have said that it is likely the ISPs shall not be found liable for any offence under any circumstance as it will be difficult to prove they had intent. It is likely the Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations of 2007 will be relied upon in theory as they clarified the legal position regarding liability of caches, hosts and conduits in regard to religious hatred offences.

Despite the new Ecommerce Directive superseding and revoking the 2007 Regulations, industry experts feel that the 2007 Regulations were of greater significance to ISPs understanding their legal position as the new Regulations may enhance abuse if liability continues to be limited.

The Government ‘s standpoint on the liability of ISPs appears to be that there is scope to dispute the whether or not these digital service providers could actually have the intent required to prove their liability for creating hatred due to someone’s religious beliefs or sexuality. Regulations 5, 6 and 7of the new Regulations list the identifiable exceptions from liability caches, hosts and conduits can utilise in accordance with the Ecommerce Directive.