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. |
Comment | Venue 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 |
Characteristics | Stall 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-Mail | Unmoderated forum | Moderated 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 |