Those who want ISPs to be financially responsible argue that ISPs are publishers like newspapers or magazines and must take responsibility for the material on their servers. On the other side, ISPs argue that they are like telephone companies – simply carriers that provide a means of sending information. So far, Congress and courts have favored the ISPs’ position and provided guidelines that permit responsible ISPs to avoid liability for the millions of bits of digital information passing through their portals. Currently, ISP’s face two main types of litigation, defamation and copyright infringement, and have two powerful statutory shields protecting them from liability in each area.
Online copyright infringement occurs when a copyrighted work -such as a song or movie – is copied, modified, displayed or performed without authorization of the copyright owner. There are two main types of copyright infringement lawsuits:
- Contributory infringement – the ISP contributed to the infringement
- Vicarious infringement – the ISP supervised and profited from the infringement
An ISP can avoid financial liability by following the “notice and takedown” provisions, should one of its subscribers offer an infringing copy online. These provisions basically state that once an ISP receives notice of the infringement, it must take down the unauthorized material.
The requirements for avoiding liability include:
- The ISP must not obtain financial benefit from the infringement
- The ISP must not have actual knowledge or awareness of facts indicating infringing transmissions
- Upon learning of an infringing transmission, the ISP must act quickly to remove or disable access to the infringing transmission
- The ISP must implement a policy of terminating the accounts of subscribers who are repeat infringers
Libel is the publication of an untrue statement that causes an injury to the reputation of a person or business. Unlike the publisher of a newspaper or magazine, an ISP is shielded from liability in libel lawsuits through certain statutory protections.
The CDA has proven to be an all-purpose shield for ISP liability. Under the provisions of Section 230 of the Communications Decency Act (CDA), no ISP “shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, ISPs are not responsible for what users post online.