ISP liability, intellectual property rights, defamation, copyright
In today’s world of rampant networked communica- tion, the Internet Service Provider (‘‘ISP’’) finds itself in a uniquely vulnerable position. As the conduit through which content is disseminated to a numerically and geo- graphically vast audience, the obvious legal risk to ISPs is that those who provide content will do so in a way that attracts legal liability. Like many communications prov- iders (such as publishers or broadcasters), the ISP may have to assume some responsibility for simply providing the means of transmitting content. In some cases, the ISP is more actively involved in the transmission or is know- ingly complicit, and the argument for imposing liability may be even stronger. The digital environment itself also raises novel concerns. The ISP makes a very attractive defendant because it is more readily identifiable in the realm of cyberspace where user anonymity is often the norm, because of the jurisdictional problems that arise from the global nature of the Internet, and because the ISP may have deep pockets. Sometimes the ISP is caught in the middle of a dispute between a plaintiff and a pseudonymous defendant, where the ISP is the only legal entity with any information as to the defendant’s true identity. The dilemma of the ISP and the legal implica- tions of the role it plays in the networked environment is a highly contentious and currently unresolved area in Canadian law. Given the pervasiveness of online com- munication, however, it is expected that both the Cana- dian courts and the legislature will soon be forced to address this issue.
This paper will attempt to describe some potentially troublesome areas for ISPs, and give some suggestions as to how liability can be minimized or avoided. The first part is a discussion of defamation issues, the second part is a discussion of copyright and other intellectual prop- erty rights, and the third part addresses the question of liability to subscribers over anonymity issues. We con- clude with some contracting tips for ISPs which bolster ISPs’ protection beyond the legal regime that is currently in place.
Andrew Bernstein and Rima Ramchandani, "Don't Shoot the Messenger! A Discussion of ISP Liability" (2002) 1:2 CJLT.