Adult content blocks on mobile ISPs

[James Firth]

Back in 2008 I believe it was discussed on this list the possibility that
ISPs implementing Phorm-like systems could lose "mere conduit" liability
indemnity under S17 of the E-Commerce (EC Directive) Regs 2002
(transposition of Directive 2000/31/EC).

I also remember discussion of whether CleenFeed-type systems could also
possibly open similar discussions.

(Noting that the public archive of UKCRYPTO has not been publically
accessible for some time now.)

The debate has been re-opened with the proposal for a UK-wide adult (nb
legal adult content, not illegal) content filtering system, something which
some mobile phone networks have been doing for a few years, and others are
following suit.

My reading of S17 E-Commerce Regs are that such filtering could open up the
networks to liability, since when a subscriber initiates a session with any
arbitrary HTTP/GET request, the network is making a decision on whether to
pass-on the request to the intended recipient, or divert to a holding page
explaining that it's been blocked, therefore the carrier did "select the
receiver of the transmission" under S17(1)(b); and, potentially, depending
on how it's implemented, fail the test S17(1)(c) "did not select or modify
the information contained in the transmission"

The exemptions described in 17(2) and S18 (Caching) don't seem to apply.

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?

James Firth