Adult content blocks on mobile ISPs

[Francis Davey]

On 4 March 2011 11:26, James Firth <james2 at jfirth.net> wrote:
>
> Would any suitably qualified person on this list be prepared to make a
> comment - possibly for use on my blog - on this? Specifically with regards
> to the filtering some mobile phone companies are already doing, and also in
> the wider context of the campaign to prevent a UK-wide ISP filter?
>

It seems to me that filtering cannot cause mere conduit status to be lost.

The best starting point to think about it is the directive 2000/31/EC
rather than the regulations (after all, who wants to talk to the
monkey when they've got the organ grinder?). Recall that for European
legislation:

* interpretation is generally purposive rather more than is
traditional in UK legislative acts and
* to that end, the recitals are important in aiding construction.

Recital 40 says:

"(40) Both existing and emerging disparities in Member States'
legislation and case-law concerning liability of service providers
acting as intermediaries prevent the smooth functioning of the
internal market, in particular by impairing the development of
cross-border services and producing distortions of competition;
service providers have a duty to act, under certain circumstances,
with a view to preventing or stopping illegal activities; this
Directive should constitute the appropriate basis for the development
of rapid and reliable procedures for removing and disabling access to
illegal information; such mechanisms could be developed on the basis
of voluntary agreements between all parties concerned and should be
encouraged by Member States; it is in the interest of all parties
involved in the provision of information society services to adopt and
implement such procedures; the provisions of this Directive relating
to liability should not preclude the development and effective
operation, by the different interested parties, of technical systems
of protection and identification and of technical surveillance
instruments made possible by digital technology within the limits laid
down by Directives 95/46/EC and 97/66/EC."

So the directive envisages that service providers should be able to
act voluntarily to prevent access to "illegal" information. Its clear
that filtering/blocking and monitoring by service providers is
entirely consistent with the directive's objectives (provided that any
such activity is not illegal for some other reason - such as being an
infringement of privacy which is covered by other directives).

Now blocking "adult" content is not the same as blocking "illegal"
content, but once the point is conceded, I think it follows that the
mere conduit defence must be interpreted so as to permit service
providers to act in the public interest by filtering or disabling
access to information.

In this light, recital 42:

"(42) The exemptions from liability established in this Directive
cover only cases where the activity of the information society service
provider is limited to the technical process of operating and giving
access to a communication network over which information made
available by third parties is transmitted or temporarily stored, for
the sole purpose of making the transmission more efficient; this
activity is of a mere technical, automatic and passive nature, which
implies that the information society service provider has neither
knowledge of nor control over the information which is transmitted or
stored."

should be read as including filtering even though that isn't the
literal meaning (to some minds) of "activity .. of a mere technical,
automatic and passive nature."

In particular the mere conduit immunity is directed at liability for
information and the rationale is that the mere conduit has no real
control over the information in question (it didn't create it or
select it) and therefore should not be liable for it.

Now its possible that there could be liability for (say) an ISP that
actively filtered "adult" material in such a way that it could
exercise choice or control over that material but chose not to do so
and the liability arose as a result of the particular material
filtered or not filtered. I doubt something that was relatively
automatic (say as a result of meta tags, an "adult sites" list not
edited by the ISP, and customer opt-ins).

After all, ISP's do by their very nature "select" destinations in the
sense that they take automatic routing decisions (or may have to).

That is my half-pennyworth anyway. There's no authority on the point
directly and who knows how it might go.

-- 
Francis Davey