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< טפשמו קוח  Illegal Content on the Internet |
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Illegal Content on the Internet content: Introduction Presentation of the issue The USA Copyright Defamation Germany Holland The European Community Summary of the Position in the USA and Europe Israel Bibliography INTRODUCTION The Internet is a new world which is based on the foundations
of man's imagination. It rests on protocols with names like http and TCP/IP.
It uses foreign languages like html, Java and ActiveX. We "surf" the Internet
and "visit sites", using browsers with names like Navigator and Explorer.
It is not by chance that the Internet is called Cyberspace; it really
is somewhere else, another world.
Nevertheless, people are people, both in this world and in Cyberspace. Consequently the same types of legal problem as arise in this world also arise in Cyberspace. However, since a new environment is involved, the statutes and legal precedents, which are appropriate to this world, do not provide a proper answer beyond it. In many countries awareness of the legal issues which are specific to the Internet environment is growing. As regards liability for illegal content on the Internet, this awareness is expressed in several leading judgments in the USA and in European case law and legislation. In Israel, the matter has not yet been considered by the courts and it is difficult to infer from existing legislation how they should adjudicate when called upon to do so. I shall below illustrate the issue of liability for illegal content on the Internet by describing an actual case that occurred in the USA. I shall then discuss the legal developments in the USA and Europe and inally I shall present the legal position in Israel. PRESENTATION OF THE ISSUE On 19th April 1995, the Oklahoma City bombing in the USA
resulted in the deaths of dozens of people, including young children who
were at a day nursery in the building. The American nation was stunned,
pained and angered. The bombing shocked the whole world.
A few days later, on 25th April 1995, someone, whose identity is still unknown, published a message on the electronic bulletin board of AOL, a US on-line service provider, stating that T-shirts with tasteless slogans about the bombing could be bought. The message stated that a person by the name of Ken should be contacted and his telephone number was given. Apart from the name and number, the message was false. The person whose name was given, Kenneth Zeran did carry on business from his home with the phone number mentioned in the message but was not selling T-shirts of the type mentioned. As a result of the message many irate people began to telephone Zeran, expressing their anger at what he was supposedly selling and there were those who even threatened his life. Zeran did not want to change his phone number because he used it for his business. He therefore contacted AOL the same day and told its representative what was happening. The company's representative promised that the damaging message would be removed from the bulletin board. It was removed, although it is not clear how long this took. The next day, on 26th April, the same anonymous person posted another similar message, this time stating that if the telephone was busy, further attempts should be made because the line was congested. As a result, the number of irate telephone calls increased. For another four days the same person continued to post similar messages on AOL's bulletin board and even added that other items, also carrying offensive slogans about the bombing, could be bought. Zeran continued to telephone AOL and was told that the account of the person posting the messages would be closed in the next few days. Zeran also informed the FBI. By 30th April Zeran was receiving one irate telephone call every two minutes. Meanwhile, an announcer from an Oklahoma City radio station obtained a copy of the original message posted on the AOL bulletin board. On the radio, on 1st May, he told of the message, incorrectly ascribing it to Zeran, and asked listeners to harass him with telephone calls. As a result Zeran was flooded with more vicious, threatening calls. A few days later Zeran spoke to representatives of AOL and the radio station. He also spoke to the local police, who placed a guard on his home lest attempts to attack him be made. By 14th May, after a local Oklahoma City newspaper had published an article showing the messages to be false and the radio station had published an apology, the number of angry phone calls fell to about 15 a day. On 23rd April 1996 Zeran filed a claim against AOL for compensation. He did not sue the anonymous person who posted the messages because, according to him, AOL had kept faulty records, which made it impossible to identify the person. The messages about Zeran on AOL's bulletin board were defamatory. The question is - who should bear liability for the defamation? It is clear that whoever posted the messages should be liable, but in the circumstances his identity was unknown. Should the service provider, AOL, compensate the plaintiff, since it did not act to prevent the defamation, even though it knew that its service was being used to publish it and it had the means to stop the publication? This case demonstrates a typical situation in the Internet environment. Someone does something illegal by means of an Internet service provider's computer infrastructure and as a result someone else is damaged. Should the service provider bear liability in addition to the direct wrongdoer? It should be noted that such illegal acts are not limited to the publication of defamation and can include copyright infringement, misrepresentation, infringement of privacy and more. There are various approaches around the world to this issue. I shall below present the law that is developing in the USA and Europe and go on to discuss the position in Israel. THE USA Copyright The law on service providers' liability for the acts of others in the USA distinguishes between copyright infringement and defamation. It is based on only a few judgments, none of which is from the US Supreme Court. Moreover, the matter has not yet been legislated. As a result, the situation is still in the development stages and what I say here today, can change tomorrow. As regards copyright infringement, prominent is a September 1995 decision of a Federal Court in California in Religious Technology Center v. Netcom et al. RTC sued three entities for copyright infringement. The first was a person by the name of Ehrlich, who distributed, without permission, over the Internet, works by the founder of the Church of Scientology, L. Ron Hubbard, the copyright in which works belonged to the plaintiff. The second defendant was Ehrlich's Internet service provider, through which the content was transferred to another provider. The third defendant was the other provider, Netcom, which hosted the infringing content and the content was distributed worldwide over the Internet through it. RTC asserted that each of the defendants was directly liable for the infringement of its copyright in the works. As regards Ehrlich, the plea is clear. But what about the service providers? According to RTC, Ehrlich had made an infringing copy of each of the works and delivered them to his service provider. His service provider made digital copies of the works on its own computer and sent them to Netcom's computer. The infringing copies were kept on Netcom's computer and distributed to the whole world, further infringing copies being made. By making and distributing infringing copies of the works without the copyright owner's permission, all the defendants had, according to RTC, infringed its copyright in the works. Netcom sought to dismiss the claim for want of cause, pleading that it should not be held directly liable for the infringement of the plaintiff's copyright. It contended that it was not possible on the Internet to know what content was being transferred, who was transferring it, whether copyright was being infringed etc. It asserted that if the plaintiff's position were accepted, it would lead to the closure of the Internet. The Court dismissed the plaintiff's position and held:
Nevertheless, the Court was not prepared to dismiss the possibility that Netcom should bear contributory liability for the infringement of the plaintiff's copyright in accordance with the principles laid down in US case law. Relying on case law, the Court stated that the defendant could be held contributorily liable for a third party's copyright infringement, if the defendant, knowing of the third party's infringing act, induces, causes or materially contributes to the third party's infringing conduct. Such liability is termed "liability on notice". As the Court said:
The Court decided that it was inappropriate to dismiss the claim, since the existence of a factual infrastructure had been established which might in the course of trial lead to Netcom being held liable for contributory infringement of copyright. The case did not actually come to trial and a settlement was reached, whose terms have not been published. Defamation As regards defamation, in 1991 the Federal Court, in Cubby, Inc. v. Compuserve, distinguished between the liability of a publisher and that of a distributor with regard to a third party's defamatory act. With respect to a publisher, the law prescribes that it is liable for whatever is published by it, whether or not it knew of the content. So far as the distributor is concerned, it is not liable for what it distributes, unless it knew or should have known that it was distributing illegal content and did not take action to stop further distribution. Against this distinction, the Court asked whether a service provider should be treated as a publisher or distributor. In the specific circumstances, it was established to the Court's satisfaction that the provider, Compuserve, did not control or edit the content published through its service. The Court therefore held that the provider merely acted as a distributor and should not bear liability for defamation by another, unless it knew or should have known that it was distributing defamatory content and did not take steps to stop it. In another judgment, Stratton Oakmont, Inc. v. Prodigy Services Co., the New York Supreme Court held in 1995 that the defendant, an on-line service provider, controlled and supervised content that was presented through its service and therefore acted as a publisher, which bears strict liability for what it publishes. In November 1997, the Federal Appeals Court ruled on Zeran's case. In that case it was clear that AOL knew of the defamation published through its service and it was also clear that it did not stop its continued publication when it was made aware of it. According to existing law, AOL should have borne liability to Zeran and been required to compensate him for his damage. However, the Court dismissed the claim, relying on a 1996 legislative amendment. The amendment, which is now section 230(c)(1) of The Communications Decency Act, provides:
Zeran relied on such an argument but the Court did not accept it. It dismissed the claim and held that service providers could not be expected to remove content from their services whenever someone complained that the content had an illegal element and was, for example, defamatory. As regards the principle of "liability on notice", the Court held that section 230 had altered the legal position in the USA and therefore the liability of a service provider for the publication of a third party's defamation should no longer be recognised, even if it actually knew of the illegal publication. The Court accepted AOL's position that it did not have the ability to judge people's complaints of defamation. If it was to bear liability for the publication of defamation every time it did not act as requested by a complainant, the result would be that it would have to accede to every request from the public to remove content which was allegedly illegal, failing which it would be exposed to civil actions, defending which would lead to the closure of the business and even to the closure of the Internet. This result would be a grave infringement of the freedom of speech. Adopting this argument, the Court held:
GERMANY Section 5 of the German Act on the Utilisation of Teleservices,
which was enacted in August 1997, regulates the liability of service providers
for the publication of a third party's illegal content. Unlike the law
in the USA, the German Act does not distinguish between different types
of illegal content. It does distinguish between different types of providers:
providers who serve as the host for a third party's content; and providers
who merely serve as a pipeline for the transmission of such content from
place to place. As regards the first type, section 5(2) of the Act prescribes
that a provider will not bear liability for a third party's illegal content
which is distributed through it, unless the following three conditions
are fulfilled:
(a) it actually knew that the illegal content was in its possession; (b) it had the technical means to stop distribution; (c) it could be reasonably expected to stop the distribution. In the actual words of section 5(2), as translated into English:
HOLLAND In Scientology v. Providers and Karin Spaink, the President
of the District Court of The Hague in March 1996 held in a claim, which
was essentially the same as that in Netcom, that service providers should
not be held liable for illegal content transmitted through them unless
they knew of the infringing activity and did not take steps to stop it.
The Court stated:
THE EUROPEAN COMMUNITY A paper submitted to the European Parliament in April
1997, entitled Illegal and Harmful Content on the Internet, adopted the
approach whereby a service provider, which hosts third party content,
should act to remove illegal third party content if it is made aware,
at least prima facie, that such content is being hosted by it. It makes
no distinction between different types of illegal content, either on the
civil or criminal level. In the words of the document:
SUMMARY OF THE POSITION IN THE USA AND EUROPE The recent development in the USA in the case of Zeran
indicates a trend towards relieving service providers of liability for
illegal content distributed through them, with a view to serving the value
of freedom of speech. On the other hand, the trend in Europe is to make
service providers liable, as a means to stop the distribution of illegal
content or material which is such as to infringe various values. Nevertheless,
in neither system is a service provider liable, unless it knew that its
service was being used for the distribution of illegal content and did
not take steps to stop the distribution.
ISRAEL In Israel, this subject has not yet been considered by
the courts and the issues mentioned above are clouded in uncertainty.
As regards copyright, existing legislation and case law give no clue as to how the court would adjudicate, if a claim were brought against a service provider on the cause of copyright infringement by hosting or transmitting an infringing copy of a work made by a third party. Nevertheless, section 7 of the Copyright Act 1911 provides that any infringing copy of a work is presumed the property of the copyright owner. Consequently, the copyright owner could apply to the court to obtain possession of it or he could sue on the cause of conversion. Section 7 could perhaps be construed to the effect that if an infringing copy of a work is in digital form on a service provider's server, the copyright owner could apply to the court for an order against the provider to remove the infringing copy from its computers and restrain from using it. As regards defamation, section 11 of the Defamation Law, 5725-1965 provides that a publisher will be liable for the publication of defamation "in media", that term being defined as "a newspaper within the meaning of the Press Ordinance and a radio or television broadcast available to the public". The definition does not embrace the Internet. On the face of it, therefore, an Internet service provider could not be treated as an editor in distributing defamation through its service. Section 12 of the Defamation Law concerns the liability of a distributor. However it subjects the distributor of defamation to liability only if he distributes "defamatory matter in print" and knew or should have know thereof. In other words, since an Internet service provider does not deal with printed matter, it cannot be viewed as the distributor of a third party's defamatory content and will not bear liability even if it knew or should have known that it was distributing defamatory matter through its service. As regards defamation, it would appear that Israeli law similar to the law in the USA following the judgment in Zeran. Nevertheless, there can be no certainty that the Israeli court, if called upon, would reach the same conclusion. The question of service providers' liability has been considered in Israel by the Law and Order Working Group which helped prepare a report for the Knesset Committee on Computer Networking and Information. The final report, entitled The State of Israel's Preparation for the Information Age, was published on the Internet in March 1997 (in Hebrew only). The following appears in the chapter on Law and Order:
BIBLIOGRAPHY Articles And Reports
http://www2.echo.lu/legal/en/internet/content/communic.html Liability for On-line Intermediaries, Institute for Information Law, Amsterdam, August 1997, http://www.imprimatur.alcs.co.uk/download.htm The State of Israel's Preparation for the Information Age, The Knesset Committee On Computer Networking And Information, March 1997, pp. 42-43, http://www1.knesset.gov.il/knesset/docs/infocom/visual/Final1_t.htm
http://law.house.gov/usc.htm HR 2180- On-line Copyright Liability Limitation Act, http://thomas.loc.gov/ * Address of home page through which the cited material can be accessed. Act on the Utilisation of Teleservices (Germany), http://www.iid.de/rahmen/iukdge.html Judgments
Religious Technology Center v. Netcom On-Line Communication Services , 907 F. Supp. 1361 (N.D. Cal 1995) Scientology v. Providers and Karin Spaink, (District Court of the Hague, 12 March 1998), http://www.xs4all.nl/~kspaink/cos/verd1eng.html Stratton Oakmont, Inc. v. Prodigy Services Co., (N.Y. Supreme Ct. 1995) Zeran v. America Online Incorporated, (United States Court of Appeals, 4th Circuit, Nov. 12, 1997), http://www.law.emory.edu/4circuit/nov97/971523.p.html Note: All references to Internet addresses are up to date as at 10th February 1998. 
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