ISP and intermediary liability
ISP and intermediary liability

The following IP guidance note provides comprehensive and up to date legal information covering:

  • ISP and intermediary liability
  • Mere conduits
  • Caching
  • Hosting
  • ISPs—dealing with infringements and take down requests
  • Monitoring
  • DSM Copyright Directive

The E-Commerce Directive (Council Directive 2000/31/EC), which deals with certain legal aspects of information society services, in particular electronic commerce in the Internal Market, has provided for liabilities that arise out of the functioning of networks in the digital age. Service providers, including Internet service providers (ISPs) in the UK, have a defence against claims for damages, other pecuniary remedies and criminal sanctions for content transmitted over their networks in certain circumstances, largely where the ISP's activities are automatic, intermediate and passive. Protection from liability does not prevent the granting of injunctions against ISPs.

It should be noted that the E-Commerce Directive is targeted towards general content liability and not just specific IP rights.

The Electronic Commerce (EC Directive) Regulations 2002 (E-Commerce Regulations 2002), SI 2002/2013 give effect to the E-Commerce Directive in the UK. E-Commerce Regulations 2002 limit the liability of ISPs who unwittingly transmit or store unlawful content provided by others, in certain circumstances. E-Commerce Regulations 2002 do not make the acts of ISPs 'permitted acts' (although some permitted acts may apply concurrently such as the making of temporary copies); instead the acts specified are infringements but merely have a defence available to them in relation to pecuniary claims and criminal proceedings. There are three categories of ISPs whose liability is limited by E-Commerce Regulations 2002: those who transmit information