Where an ICT supplier is providing hosting services it is possible for the ICT supplier to expose itself to significant liability resulting from the content that is loaded in, and transmitted through, the customer’s applications and the network. The ICT supplier is not in control of this content, yet the ICT supplier may still be liable. The ICT supplier may become liable in respect of the content in the following ways:
• because the ICT supplier is deemed to be the “publisher” of any content that is defamatory. The law of the defamation applies here;
• because the ICT supplier is deemed to “authorise” the infringement of copyright material if the content includes items which are infringing copies of copyright e.g. pirated videos, music or other infringing materials.
This may be an infringement of copyright;
• because the ICT supplier is disclosing, storing or using personal information in breach of privacy laws;
• because the ICT supplier is hosting or providing access to materials which are restricted under specific laws such as the laws that deal with the distribution of pornography.
Whilst most of these exposures lead to civil liabilities of damages and/or an account of profits, some of these actions have criminal penalties. Further, liabilities extend beyond traditional Internet Service Providers (ISPs), yet any statutory protections may not apply to all types of ISP or other hosting service provider.
The World Intellectual Property Organisation (WIPO) has adopted the WIPO Copyright Treaty 1996, which provides that copyright liability should not apply to a person that is servicing as a “conduit”, who provides physical facilities for enabling or making a communication. Australia has implemented this principle through the Copyright Amendment (Digital Agenda) Act 2000 (Cth). As a result, the Australia-United States Free Trade Agreement subsequently required Australia to provide rules for the liability of ISPs for copyright infringement reflecting the rules in the US for limiting liability of ISPs for copyright infringement.
The effect of this new provision in the Copyright Act is that from 1 January 2005 there will be limits to the “carriage service provider”, including ISPs who satisfy the conditions of the Act.
Generally, where a service provider satisfies the conditions in the Act it will not be liable for damages (which might include having to account for profits) for any infringement of copyright, rather the main remedy is to be subject to an order to take down the infringing material from the site and/or terminate the account.
To be able to take advantage of these “safe harbor” provisions the ISP must:
(a) have and implement a policy of terminating accounts of repeat infringers; and
(b) accommodate and not interfere with technological measures used to protect and identify copyright works.
Once these threshold issues are met, a range of further conditions need to be satisfied depending on the services that are to be provided.