New Bill labels ISPs as publishers

UK Govt still in mess over dealing with Internet

A government bill currently in the House of Lords labels ISPs as publishers, in an apparent attempt to bypass their undecided legal status and enforce new tobacco advertising rules.

Clause 5(5) in the Tobacco Advertising and Promotion Bill (second reading) says that: "In relation to a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider, it is a defence for him, if charged with an offence under section 2(1), to proce that he was unaware that what he published or caused to be published was, or conatined, a tobacco advertisement."

While this is certainly an improvement on previous bills involving the Internet, it still gives an ISP the status of a publisher - something that remains undecided by the courts and has wide-ranging implications on the whole Internet industry.

A more worrisome feature comes in clause 7, which states: "The Secretary of State may by order amend any provision of this Act if he considers it appropriate to do so in consequence of any developments in technology relating to publishing or distributing by electronic means."

While we can understand the government's wish to keep its options open regarding fast-changing technology, this clause appears to give carte blanche for a retrospective change in the law according to how a minister understands modern technology (something that they prove every day that they don't). We sincerely hope that this clause doesn't become a recurrent escape clause for civil servants too lazy or uninformed enough to understand how the Internet works.

Anyway, our continued relaxed confidence in the House of Lords to interject some sanity into proceedings has been justified once again. A number of Lords raised serious queries as to whether the clauses should be allowed through as they are.

In defence of clause 5, it was said: "Clauses 5(5) and 5(6) provide for the position of Internet service providers and other intermediaries in electronic transactions. Such intermediaries are handling a vast amount of information. The Bill provides that such parties will not be liable when they are unaware that they are handling a tobacco advertisement. This is a stronger defence than for intermediaries in the paper chain and is necessitated by the nature of electronic media. We believe that this provides the right measure of protection for the e-commerce sector and that it is compliant with the e-commerce directive."

Defence for clause 7 stands: "Clause 7 gives the Secretary of State powers to amend any provisions if it becomes necessary to do so in consequence of any developments in technology concerning publication or distribution by electronic means. We do not propose to treat advertising by electronic means either less or more favourably than other forms of advertising. However, the pace of technological change in this area makes it very difficult to predict what new means of publishing or distributing may emerge and we believe it is right to cater for potential developments in this way."

Any use of clause 7 will also "be subject to parliamentary oversight by the affirmative resolution procedure".

Lord Lucas was outspoken in his criticism and exposes government confusion: "Another dimension to the problem arises in the case of Internet Service Providers. Last year we passed the Regulation of Investigatory Powers Act. It, too, included a reversal of proof provision that we managed to get struck out. Under the Act it is a criminal offence for an Internet Service Provider to know what is in the e-mails that go through its wires. The Government are now seeking to make it a criminal offence not to know what is going through its wires. The ISPs will be caught coming and caught going. I do not see why it is necessary to catch them in that way with a reversed burden of proof when we have already made it impossible for them legally to know what is going through."

He continued: "Under any practical circumstances, the ISP has been told what is happening. The ISP should be attacked only when he knows what is happening and does nothing about it. Again, there is no reason to reverse the burden of proof."

The Earl of Liverpool was in agreement: "The power which it confers is aimed at Internet and electronic promotion of tobacco. It would, I believe, be wholly wrong to allow such powers to stay in the Bill. This is a very complicated area which will require proper parliamentary scrutiny if for no other reason than to avoid the law of unexpected consequences. The electronic aspect and the attempt to cover that in the Bill are, frankly, a minefield."

The Earl of Northesk stretched it further: "We have become inured to the oft-repeated mantra that the government are aiming to make the UK the best and safest place in the world for e-commerce. That is all good and well. But measures such as IR35 and the Regulation of Investigatory Powers Act work against the grain of that ambition. Far from promoting or facilitating the development of e-commerce in the UK, they act as constraints and disincentives. So it is with the Bill which, in terms, reveals a scant understanding of the way in which the Internet works."

Earl Howe was also in there: "We are very worried about the anomalous and unjustifiable effect of Clause 5(5) on Internet service providers. We deplore the reversal of the burden of proof."

The official response to these criticism came as follows from Lord Hunt of Kings Heath: "The Bill will enable us to stop tobacco advertising on UK websites. We cannot prevent access to websites in other countries where it is legal to advertise tobacco, but we can take action against those facilitating such action in appropriate cases.

"I understand that the representatives of Internet service providers have raised concerns about the Bill, as a number of noble Lords have pointed out. The question of whether ISPs are publishers or distributors is complex and there is no legal certainty about it. That is why the Bill was amended in Committee in the House of Commons to furnish ISPs with robust defences regardless of the opinion of any court. I understand the concerns that have been expressed. We are prepared to listen to those concerns and discuss them with representatives of the industry as the Bill proceeds through your Lordships' House."

The disturbing aspect to this is that the government appears to be trying to push through a Bill when it knows the wording is still under dispute legally - the ISP as a publisher. As we understand it, the DTi has fully grasped the implications and is trying to persuade the technically illiterate in government of the clause's impracticality - a difficult task. ®

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