Section 21.3 Liability of ISPs Allowing Illegal Activity

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21.3 Liability of ISPs Allowing Illegal Activity

Under current U.S. law, ISPs hopscotch between laws that apply to common carriers ("the phone company") and publishers. As a common carrier, the phone company is not liable for what is said over its phone lines. For example, if you telephone up your neighbor's boss and falsely claim that you saw your neighbor have a known prostitute visit while his wife was out of town, the phone company is not liable for the slander that you just committed. It was just carrying the message.

However, if you told this lie to the town newspaper and it published it without making a reasonable check of the claim, the newspaper might be guilty of libel. (Slander is the spoken telling of harmful lies to others and libel is the telling of harmful lies in print. This author is not sure which category using a computer would be, though he suspects that it would be libel.)

The difference is that "it is not the phone company's job as a common carrier" to edit content for slander, obscenities, or other illegal matter. The U.S. courts ruled in 2000 that if an ISP does not edit the content of Web sites or e-mail it handles, it is considered a common carrier and exempt from libel. (There was a bill before the U.S. Congress to change this but fortunately it died.)

If an ISP starts controlling content, say, by prohibiting Web pages that are libelous or which contain pictures of naked people, it risks being treated as a publisher and then obligates itself to be scrupulous about forever looking for and immediately removing libelous, obscene, and all forms of illegal content.

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