Adult content blocks on mobile ISPs

[Roland Perry]

In article <4D70E0FF.6090208 at ernest.net>, Nicholas Bohm 
<nbohm at ernest.net> writes
>> 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 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.

The liability would arise from being considered an accomplice in the 
dissemination (I could say publication, perhaps) of content. Which was 
"illegal" in some way, or infringed copyright, or was defamatory etc 
etc.

But if we accepted that the selective blocking of *anything* destroyed 
the whole idea that they were a mere conduit, then that could be 
triggered by the OP's issue with filtering "adult" content, or it could 
be because they use the IWF's list (of newsgroups or websites), or 
because they select (sorry, identify) some emails as potential spam or 
actual virus-laden, or choke P2P because it exceeds a bandwidth cap, or 
(anti-spam again) block outbound port 25... <one could go on>.

So if it's the case that not letting through *everything* loses you the 
immunity, that train left the station long ago.

Whether any of the above is "selecting" as mentioned in the Directive, 
is another matter. It's not explained in the text, although the recitals 
suggest that what they intend is, to give immunity as long as the ISP 
isn't colluding with the subscriber to identify and deliver dodgy 
content.

In other words, letting through dodgy content because you haven't 
bothered to filter it out, is exactly the circumstances they want the 
*protection* from liability to cover.

Anyway, just a few thoughts; happy to discuss it further.
-- 
Roland Perry