Lecture 4 - Liability of ISPs
An ISP is an intermediary who provides you access to the internet or a hosting service. Doesn’t
provide the content itself: the owner of the website does so. Factually, the ISP fulfils a technical role.
When it comes to conflicts about content, he might be drawn into this and the question is what kind
of liability he may have. Types of conflicts the ISP can be brought in: intellectual property, data
protection/privacy issues, defamation/slander issue.
1. Elements of liability
Damage. The position of the ISP towards different types of damages is different. ISP might be more
willing to work with child pornography since he doesn’t want to be associated with this. Copyright
infringement he might be less willing, since all people say the copyrighted material on his website
which might be attractive.
Wrongdoer. If I put something copyrighted protected on a website, I am obviously the wrongdoer
and the rightsholder wants to address me. It’s undoable to address each website holder individually
so they can choose to go after the ISP. It’s making available to the public (communication to the
public) and you might also say it’s an infringement of the reproduction right because I make a copy of
the server. The ISP who owns the server and provides the service doesn’t directly infringe copyright
but there might be an indirect form of infringement. He is not completely free of blame. The contract
containing a provision that states the website owner may not infringe and upload third party
copyright content, but the rightsholder is no party to the contract. Therefore, the contract may play a
role but it’s not directly applicable to the rightsholder. The ISP is not actively making the
infringement, but can make an indirect infringement. This is not harmonized, so you’d fall back on
national rules. For Dutch law, this would be the general tort. Promoting direct infringement by
someone else is under certain circumstances a tort and this can be seen as an indirect infringement
of copyright.
Conduct. The uploader does something illegal and the ISP’s system hosts this information. He is an
access provider through which you may have access to another provider.
Causality. The damage occurs when the information becomes available on the internet. If the ISP
would be liable for direct infringement, he would be a link in the chain by omission. You could say
that he should’ve checked the information, at least once it is available. A hosting provider stores the
information on the server and an access provider makes sure that you can go on to the internet, but
doesn’t provide you any further services. Information that you put on the internet flashes through
the access provider’s system and may be stored there temporarily, but doesn’t stay there for a long
enough time. There is hardly anything he can do because the information goes very quickly through
your system. You could introduce a filter checking the information on illegal content; after the
rightsholder has provided a sample of the work, the system checks for content that’s the same. For
an access provider, it may be much harder to filter than for a hosting provider. The hosting provider
has it on their website for a longer period, they have it as an HTML file so technically, filtering goes
much easier.
If you send something on the internet, it’s enclosed to a number of programs. On top, you have an
application like your email browser or website editor. Under that, there is a TCP layer, then an IP
layer and then the hardware. TCP splits up a message in small packages so they can be sent over the
internet. The IP layer does the browsing, computer in a network is connected to other computers in a
network. The message that must be sent to some destination computer through other computers on
the same network. The computer must decide whether he sends the message to neighbour
An ISP is an intermediary who provides you access to the internet or a hosting service. Doesn’t
provide the content itself: the owner of the website does so. Factually, the ISP fulfils a technical role.
When it comes to conflicts about content, he might be drawn into this and the question is what kind
of liability he may have. Types of conflicts the ISP can be brought in: intellectual property, data
protection/privacy issues, defamation/slander issue.
1. Elements of liability
Damage. The position of the ISP towards different types of damages is different. ISP might be more
willing to work with child pornography since he doesn’t want to be associated with this. Copyright
infringement he might be less willing, since all people say the copyrighted material on his website
which might be attractive.
Wrongdoer. If I put something copyrighted protected on a website, I am obviously the wrongdoer
and the rightsholder wants to address me. It’s undoable to address each website holder individually
so they can choose to go after the ISP. It’s making available to the public (communication to the
public) and you might also say it’s an infringement of the reproduction right because I make a copy of
the server. The ISP who owns the server and provides the service doesn’t directly infringe copyright
but there might be an indirect form of infringement. He is not completely free of blame. The contract
containing a provision that states the website owner may not infringe and upload third party
copyright content, but the rightsholder is no party to the contract. Therefore, the contract may play a
role but it’s not directly applicable to the rightsholder. The ISP is not actively making the
infringement, but can make an indirect infringement. This is not harmonized, so you’d fall back on
national rules. For Dutch law, this would be the general tort. Promoting direct infringement by
someone else is under certain circumstances a tort and this can be seen as an indirect infringement
of copyright.
Conduct. The uploader does something illegal and the ISP’s system hosts this information. He is an
access provider through which you may have access to another provider.
Causality. The damage occurs when the information becomes available on the internet. If the ISP
would be liable for direct infringement, he would be a link in the chain by omission. You could say
that he should’ve checked the information, at least once it is available. A hosting provider stores the
information on the server and an access provider makes sure that you can go on to the internet, but
doesn’t provide you any further services. Information that you put on the internet flashes through
the access provider’s system and may be stored there temporarily, but doesn’t stay there for a long
enough time. There is hardly anything he can do because the information goes very quickly through
your system. You could introduce a filter checking the information on illegal content; after the
rightsholder has provided a sample of the work, the system checks for content that’s the same. For
an access provider, it may be much harder to filter than for a hosting provider. The hosting provider
has it on their website for a longer period, they have it as an HTML file so technically, filtering goes
much easier.
If you send something on the internet, it’s enclosed to a number of programs. On top, you have an
application like your email browser or website editor. Under that, there is a TCP layer, then an IP
layer and then the hardware. TCP splits up a message in small packages so they can be sent over the
internet. The IP layer does the browsing, computer in a network is connected to other computers in a
network. The message that must be sent to some destination computer through other computers on
the same network. The computer must decide whether he sends the message to neighbour
