Adult content blocks on mobile ISPs

[Nicholas Bohm]

On 04/03/2011 11:26, James Firth wrote:
> 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?

I don't feel specially qualified in my understanding of directives, but
I find your argument convincing - I do not think that regulation 17 will
protect an ISP carrying out filtering as you describe.

But showing that the shield is removed is step one.  Step two is to
establish what liability can be fixed on the ISP in its absence - the
regulations do not impose any liability themselves.

Nicholas
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