The Culture, Media and Sport Committee published its report on harmful content on the Internet and in Video Games yesterday. The report calls for immediate creation of the UK Council for Child Internet Safety (CCIS) - as recommended by the Byron Review - and also recommends that ISPs /Internet ‘companies’ set up a self-regulatory body to work with the CCIS to draw up agreed minimum standards to help protect children and the vulnerable for harmful content online.

The report contains an number of interesting things on video game regulation, and general standards, but the most interesting bit for me, was the suggestion that the UK government should possibly seek and amendment to the E-Commerce Directive.

The reason for this, is that the main reason communications service providers such as ISPs and sites such as YouTube use for not proactively vetting content contained or carried on their services, is that to do otherwise would risk them loosing ‘mere conduit’ status under EU law.

Articles 12, 13, 14, and 15 of the E-Commerce Directive (transposed into UK law by the Electronic Commerce (EC Directive) Regulations 2002) touch on aspects of the liability of intermediary service providers, including issues of hosting, caching, ‘mere conduit’ status and no general obligation to monitor.

  • ‘Mere Conduit’ (for example telecoms service provider, internet access provider) (includes transient storage), provided: (i) did not initiate the transaction; (ii) does not select the receiver of the transmission; and (iii) does not select or modify the content. (Article 12)
  • Caching (for example temporary storage by ISP to make information more rapidly accessible), provided: (i) does not modify information; (ii) complies with applicable access conditions; (iii) complies with rules/industry standards on updating information; (iv) does not interfere with access technology; (v) acts expeditiously to remove or bar access if has knowledge that original info removed, access to original info barred, or competent authority ordered removal or barring. (Article 13)
  • Hosting, provided: (i) no knowledge that the activity is illegal and is not aware of facts or circumstances that indicate illegal activity; and (ii) upon obtaining such knowledge acts expeditiously to remove or disable access to the information. (Article 14)
  • Monitoring of content: Member States cannot impose a general obligation on service providers to monitor content. (Article 15)

    • The Committee are not really convinced this is a good argument for the like of Google/YouTube to refuse to proactively review content that they host. The state that Ofcom and the Government should set out their interpretation of just when the E-Commerce Directive will place liability upon ISPs for content they host or are able to access, and that they should be prepared to seek and amendment to this part of the Directive if the current legal reading prevents service providers attempting to protect consumers.

    In doing this, Ofcom /Government may look at article 14(3) of Directive on hosting which adds: “This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.” Any Ofcom or government interpretation would also effect the ISPs in alleged illegal file sharing situations. This will be one to watch.