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Internet Service Providers - Are They Liable For Your Traffic?
September 2009 | Intellectual Property & Technology | IP Edge
Grace NG
Introduction
Many have come to rely on the Internet for their news and general information, or to listen to music, watch videos or network. Content is clearly king on the Internet but obviously not all content is legal. Internet Service Providers ("ISPs") own the "pipes" and "conduits" which carry content to a user. But if the content is illegitimate, would an ISP be liable for the conveyance of the content from the content owner to you?
Within the European Union, article 12 of Directive 2000/31/EC of the European Parliament and of the Council in the European Union states that an ISP will not be liable for information transmitted over its network provided that the ISP had not:-
| (1) | initiated the transmission; |
| (2) | selected the receiver of the transmission; and |
| (3) | selected or modified the information contained in the transmission. |
Is there a similar defence available to ISPs in Singapore? Yes, there is. ISPs in Singapore are "protected" by provisions in the Copyright Act and the Electronic Transactions Act (the "ETA").
Position under the Copyright Act
Section 193B of the Copyright Act is equivalent to the European Directive in that ISPs will not be liable for copyright infringement of third party content transmitted through their network simply by reason of their provision of transmission, routing or connection services through their primary network, or any transient storage of the material in the course of providing such services. This is provided that the ISP satisfies the following conditions:-
| (1) | the transmission of the electronic copy of the material was initiated by or at the direction of a person other than the ISP; |
| (2) | the transmission, routing, provision of connections or storage is carried out through an automatic technical process without any selection of the electronic copy of the material by the ISP; |
| (3) | the ISP does not select the recipients of the electronic copy of the material except as an automatic response to the request of another person; and |
| (4) | the ISP does not make any substantive modification (other than any modification made as part of a technical process) to the content of the electronic copy of the material during its transmission through the primary network. |
Therefore, if, for example, copyright infringing material is found on a website, the court cannot impose a fine or make any order against the ISP as long as that ISP has satisfied the requirements of section 193B above.
However, in order to strike a balance between Internet users, content owners and public interests, a court will be allowed to order an ISP to:-
| (1) | take reasonable steps to disable access to an online location that is physically situated outside Singapore; and/or |
| (2) | terminate a specified account, |
even if the ISP successfully fulfills the requirements of section 193B.
Complementary provisions in the Electronic Transactions Act
The defence available to ISPs in the Copyright Act is further complemented by provisions in the ETA. Section 10(1) of the ETA states that an ISP will not be liable for third party material in the form of electronic records (including material on the Internet) to which he merely provides access if such liability stems from:-
| (1) | the making, publication, dissemination or distribution of such materials or any statement made in such material; or |
| (2) | the infringement of any rights subsisting in or in relation to such material. |
Unfortunately, the ETA does not elaborate on what would constitute mere provision of access, and neither have there been any decided cases on this point. However, section 10(2) of the ETA makes it clear that the provisions of the Copyright Act are applicable.
What then is the resulting relationship between the ETA and the Copyright Act? While there are currently no decided cases on this point, the parliamentary reports show that the legislature intended both statutes to be read together in order to flesh out the law on ISP liability with regard to infringement of intellectual property by third parties and obviate any inconsistencies in this area of law.
In light of this, the ETA will firstly provide immunity to an ISP in situations covered by section 10(1) excluding situations which fall under the Copyright Act. This is highlighted in section 10(2)(d) to include:-
| (1) | the infringement of copyright in any work or other subject matter which is copyrighted; or |
| (2) | the unauthorised use of any performance where the protection period has not expired. |
Secondly, it is most likely that "merely provides access" in section 10(1) of the ETA will be read against the backdrop of section 193B of the Copyright Act and the keyword "merely" will be interpreted according to whether the ISP satisfies the conditions in section 193B.
Conclusion
In conclusion, the law in Singapore clearly affords a degree of protection to ISPs, recognising that ISPs cannot police all potentially illegal activities taking place on their network. However, at the same time, the parliamentary reports show that Parliament did not intend to extend immunity to ISPs where the ISP can choose whether or not to transmit or carry copyright infringing material. Consequently, an ISP in Singapore is only protected when it functions like a common carrier.
