NISC Legal Issues Framework

NISC Legal Issues Framework

LEGAL ISSUES WORKING GROUP - PAPER TO THE NATIONAL INFORMATION SERVICES COUNCIL (NISC)
URL http://www.nla.gov.au/pmc/nisc/aug95/legal.html

Possible analogies for determining the liability of information service providers.

The following tables and matrix, developed by Philip Argy, NISC Legal Issues Working Group sets out a possible approach to determining the liability of information service providers operating on the information superhighway by drawing upon analogies drawn from everyday experience.


A. Electronic Mail

Analogy Australia Post or courier delivery service
Characteristics Inter-personal communications; privacy assumption by sender and receiver; message integrity assumption by sender and receiver; service provider knowledge of content unlikely.
Service Provider Liability Same as Australia Post
Comment Australia Post not liable for contents carried; liability imposed on senders; interception only by warrant.



B. Bulletin Board Service (BBS) on Internet (unmoderated)

Analogy Public forum (The Domain, Hyde Park Corner); Open community notice board
Characteristics Freedom of speech; public access but no obligation to listen or read; individual speaker or poster responsible for own conduct; peer pressure to keep within acceptable bounds for venue in question.
Service Provider Liability Same as for venue provider.
CommentVenue operator not liable for a speaker's conduct or comments; subject headings in BBS context allow 'listen/no listen decision' easier than public speakers' forum; perhaps impose liability on contributors to use accurate subject headings



C. Electronic Discussion Forum (moderated)

Analogy Closed group (eg office) notice board visited (daily/hourly) by person in authority
Characteristics Freedom of speech; closed group access but still no obligation on others to read; individual authors responsible for own conduct; peer pressure to keep within acceptable bounds for group in question; complaint to authority, or supervisor's personal views, might result in removal of material.
Service Provider Liability Same as for 'owner' of office notice board.
Comment Unreasonable to hold management liable unless knowledge proven together with reasonable time within which to take action to remove offending material.



D. Service provider information forum (eg AAP News feed)

Analogy Public forum (The Domain, Hyde Park Corner); Open Notice board behind locked glass case.
Characteristics Nothing displayed without permission; all material pre-vetted (or even authored) by holder of key.
Service Provider Liability Same as publisher.
Comment Full knowledge combined with opportunity to remove before display; full control of subject headings.



E. World Wide Web (Internet or private system equivalent)

Analogy Paddy's market, Flea market
CharacteristicsStall holders rent space; venue owner has limited control over what is sold or displayed, and over stall holders' conduct.
Service Provider Liability Same as for venue operator.
Comment Cannot assume knowledge of every stall holder's conduct at any given point in time; perhaps liable if legitimate complaint not actioned within a reasonable time but primary liability must be on stall holder (= information content provider)


Taking each of the above scenarios the following matrix suggests the party that should be primarily liable or the principle that should otherwise apply:
Scenario Issue E-MailUnmoderated forumModerated Forum Provider forum World Wide Web
Privacy Service provider None None None None
Intellectual Property Author Author Author (unless provider knowledge) Service provider Author (unless provider knowledge)
Censorship None Author Author (unless provider knowledge) Service provider Author (unless provider knowledge)
Defamation Author Author Author (unless provider knowledge) Service provider Author (unless provider knowledge)
Consumer protection None Author Author (unless provider knowledge) Service provider Author (unless provider knowledge)
Licensed activities Author Author Author (unless provider knowledge) Service provider Author (unless provider knowledge)
Prohibited imports Recipient Recipient Recipient Recipient Recipient
Crime Offender Offender Offender Offender Offender