[Commons-Law] mail legalese

[Badri Natarajan]

At 09:11 PM 6/25/2003 +0100, you wrote:
>hi lawrence and monica,   you're right-i dont think there are any cases in 
>india dealing specifically with this (apart from the stray criminal 
>complaint against rediff in pune)-though isp/nsp liab is dealt with by the 
>IT act and would presumably cover a list web-host as well. if i remember 
>corrently though, this section (72??) uses the words "knew" or "should 
>have known"-so i guess the position would be that you're not obliged to 
>monitor-but once you're put on notice, you're bound to take it 
>off.   definitely raises an interesting question of free speech as 
>well-how is the web host to know that my claim is right in law-i could be 
>pulling a fast one or just trying my luck. the upshot is that costs of 
>legal due diligence of webhosts are up-and you're expected to bank on your 
>lawyer to find out the relative merits of a letter that puts you on 
>notice. if this is too much of a hassle, the best way out would be to 
>"take down" as soon as you receive notice-this would be playing it 
>safe.   as for related cases in the uk, there was godfrey vs demon 
>sometime back-establishing the common law position that there was no 
>liability, unless you put the isp on notice. and for free speech concerns 
>and wrongful take downs, there was an issue with google taking down some 
>stuff a while back-dont know what came of it though.   hope this 
>helps.   shamnad

There was an issue with Google taking down some stuff criticizing the 
Church of Scientology - is that what you're referring to, Shamnad?

Specifically on the US law for protection of ISPs/web hosts against 
liability for defamation, here's a passage from an article by Jonathan 
Zittrain who is a Harvard Law professor: (The entire article is actually 
very good - an overview of where copyright law in the US is heading today)

In terms of Indian law - I too don't remember anything specific, except 
that Pune case Shamnad mentions - where the "Asian School of Cyberlaws" 
sued Rediff under the novel theory that a search engine (like Rediff) was 
guilty of obscenity because they provided the users access to such 
obscenity. I don't remember the specific outcome of the case, but I don't 
think they were taken very seriously.

I think the law is evolving in the direction of the telephone company and 
the postal department - an ISP is not responsible for carrying defamatory 
material any more than the phone company is responsible for transmitting 
it. (I don't know though..a web HOST could be construed to be publishing 
the defamatory material and follow that model of liability..)

http://www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.html

But publishers are also taking the battle to other fronts, to Internet
Service Providers, or ISPs. ISPs have little interest in becoming the
Net police. They exist to move data around or to host it. A group with
a decent amount of political power—whose members include Verizon,
Comcast, AOL, MCI, and, of course, Microsoft—ISPs obtained a federal
exemption in 1996 from nearly any liability under state common law for
hosting defamatory or other harmful content. If someone posts a message
on AOL calling another company's CEO a cheat and a fraud, depressing
that company's stock price, AOL is under no obligation to take down the
posting, even if the company has pointed out its manifest falsity.

ISPs have no such blanket exemption from liability for hosting or
carrying unauthorized copyrighted material. No statute clearly sets out
what is legally required of ISPs—and courts have interpreted the
obligations of ISPs in different and conflicting ways. CEOs or
university administrators providing Internet access to their employees
or students don't know what their legal responsibilities are. When they
receive letters insisting that they stop allegedly illegal activity on
their networks, they gravitate towards a statutory "safe harbor" and
take down challenged material—or deny network access to anyone accused
of bad copyright behavior.


Badri


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