It was argued that the original injunction was not appropriate
to an ISP and alterations to the injunction were agreed between
Demon and the lawyers acting for Venables and Thompson. These
alterations were approved by Dame Butler Sloss who drafted the
original injunction.
So long as an ISP "takes all reasonable steps" to prevent
publication of the prohibited material and upon becoming aware of
such material removes it immediately from the site then there will
be no breach of the injunction by that ISP.
This ruling is in line with the principles established in the
E-Commerce Directive which deal with the liability of on-line
businesses, in particular ISPs, for third party content, caching
and hosting.
The arguement runs that an ISP such as Demon will be processing
millions of messages and postings each day and cannot be expected
to effectively monitor the content of each to check for banned
material. Accordingly, it would be unfair to hold that ISP liable
for any infringement caused by information placed on the site.
The EU E-commerce Directive, which is due to come into force in
the UK by 17th January 2002, recognises that ISP’s should be
treated as mere conduits and should not be liable for third party
material on their systems.
However, with this protection comes additional responsibility.
Once an ISP becomes aware that any material on its system is
unlawful, in order to benefit from the blanket protection the ISP
must immediately take steps to remove or suspend access to the
unlawful material. This means that all ISPs and web hosts need to
check their terms and conditions to ensure that contractually they
have the right to remove any unlawful material. Otherwise they risk
being sued for breach of contract.
