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Handling of Illegal Material

ISPs provide various services, some of which can be misused for the distribution of illegal material. This BCP addresses various issues on handling such material.

Version 1.0, prepared 16th July, 1998

Author: Clive D.W. Feather

Contents

  1. Introduction
  2. Disclaimer
  3. General rules
  4. Extending guidelines
  5. Material which is illegal to possess
  6. Other matters - general
  7. Copyright
  8. Trademarks
  9. Defamation
  10. Obscene material

1. Introduction

ISPs provide various services - notably web page hosting and Usenet - which can be misused for the distribution of illegal material. Such material is covered by a whole range of laws, from Protection of Children to Trademarks, and so no simple rule applies. This BCP addresses various issues on handling of such material.

Material which is legal to publish but distasteful or controversial is not addressed by this BCP. Nor are legal issues not related to content of material (such as Data Protection issues).

Much of the law on these topics varies between jurisdictions. This BCP is based on English Law, but it is possible for ISPs to be affected by law in other jurisdictions.

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2. Disclaimer

This document should not be read or understood to constitute legal advice. It is simply a suggestion of good practice in relation to an understanding of the current state of relevant laws.

In particular, while there has been input from various legally qualified people, the primary author of this BCP is not one and is working from a layman's viewpoint.

This document does not represent the official position of the LINX. Neither LINX nor the author accept liability for any action taken or omitted because of this document.

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3. General rules

For the purposes of this BCP, the material discussed can be broken down loosely into two types:

  1. Material which is illegal to possess, which essentially consists of child pornography.
  2. Material which is legal to possess but illegal or risky to publish; this comprises a whole range of things, included but not limited to:
    • obscene material;
    • material in breach of copyright;
    • misleading use of trademarks;
    • defamatory material;
    • certain kinds of "cracking" software.
    In many cases the matter is covered by civil, rather than criminal, law; the term illegal is used indiscriminately in this paper, even when tort or contract law might apply.

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4. Extending guidelines

The original guidelines for the handling of illegal-to-possess material were set up as part of the SafetyNet agreement. Since then it has become clear that there are circumstances where they may need to be extended.

There have been situations where the police believe that a new class of material should be treated as if it were part of some other class. A hypothetical example is that they might suggest that cartoons are to be treated as if they were photographs.

The IWF Policy Board is responsible for developing and agreeing IWF's approach to such issues with input from relevant bodies and due concern for civil liberties. It is expected that ISPs would follow their lead.

If an issue arises in a timeframe that does not allow the IWF to reach a decision, interim action may be necessary. If the police unit in question can show that a search warrant has been issued to look for this class of material, and this has been confirmed by IWF, it may be treated as if it were illegal to possess or contract law might apply.

Instances

At the time of writing, the following instance is pending. A police force has asserted that a web page whose primary purpose is to provide links to child pornography is itself child pornography, and so illegal to possess; the web page was removed at the request of the police force. The situation has not been tested in court (the accused pleaded guilty without the specific situation being considered) or discussed by the IWF Policy Board. relevant laws.

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5. Material which is illegal to possess

Description

The only material which is illegal to possess is child pornography covered by the Protection of Children Act and related legislation. Essentially this consists of photographs - whether real or synthesised - of children that are either shown in sexual situations, or else shown nude or partially-nude and posed provocatively.

It is illegal to possess such material. There is a specific defence that you did not request the material and disposed of it as soon as you became aware; this is the basis for the IWF arrangements.

Web pages consisting mainly of links to pages of child pornography held elsewhere should for now be treated as child pornography, under the "extending guidelines" provisions above.

COMMENT: there are regular claims that there are other types of material that is illegal to possess in itself, rather than illegal to possess for certain purposes. Is anyone aware of any such ? If so, please give a reference to the relevant statute.

Action

If a report is received from the IWF of such material, the material should be removed from the ISP's machines as soon as possible. Member companies may wish to verify that the material is as described and query any discrepencies with IWF. IWF will be retaining a copy of the material and the ISP should not do so unless there is another specific reason to do so (but see below concerning web sites).

If such material is discovered in any other way (e.g. a customer report) it should be reported to IWF as soon as possible and removed from the service. In the case of a Usenet posting, a copy should be retained privately until IWF confirm that they have their own, after which it can be destroyed. The ISP may wish to contact the relevant UK police force (if any) directly, though the IWF will normally do so.

If the material in question is on a hosted web site, the ISP should block access to the site both for reading and for upload, make a private copy of the site for evidential purposes (and also copy any upload log that is held) and then delete all other copies of the material.

Where a copy of material is held, it should be done electronically in the first instance, rather than being printed out. This not only makes it easier to process the material as necessary, but also avoids having physical child pornography on the premises.

If it is unclear whether material falls into the "illegal to possess" category or not, it should be reported to IWF who will advise you. In these circumstances the ISP may wish to defer blocking or removing access to the material until IWF have replied, but should nonetheless go ahead with making a copy.

OUTSTANDING ISSUE: how long should such copies of material be retained in case the police ask for them? This is being discussed by the ACPO working group, but in the meantime 90 days would appear to be a reasonable period.

OUTSTANDING ISSUE: who within the police to contact is often unclear. The ACPO working group is drawing up a list of contacts on both sides.

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6. Other matters - general

In general, the principles described below need only be applied to material that is stored on a web site hosted by the ISP, or that is posted to Usenet by the ISP's customers.

Where the matter being handled is covered by civil, rather than criminal, law, and the customer appears to have some merit on their side, the ISP may wish to take commercial matters into consideration. For example, it may be sufficient to obtain an indemnity against damages and legal costs over the material in question, rather than applying some sanction.

ISPs are advised to ensure that their customer contracts allow the actions described in this BCP to be taken. Otherwise the situation could arise where taking action could result in a lawsuit from the customer, while not taking action could result in a lawsuit from the complainant, or even a criminal prosecution.

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7. Copyright

Description

In general, all original artistic and literary works are automatically copyright. This includes unique compilations, and new arrangements of existing work. Where one work is based on another (e.g. one person creates a picture, and another then modifies it), there are two separate copyrights in the work.

The first holder of the copyright is normally either the creator of the work, or their employer if the work was done as part of normal employment. Copyright lasts for 70 years after the death of the creator (with a few exceptions). During that time it can be licensed or assigned to others. There are also other unassignable "moral" rights, such as the right to be identified as the author.

In general, it is illegal to publish a copyright work without the permission of the copyright holder. There are a number of specific "fair use" exemptions in the law, such as short extracts of a work used for reporting current events, research, reviews, and so on.

Material is regularly copied within and between computers as part of the processes of computing and the Internet, and material is also retained in caches for varying lengths of time. Such copying is probably "fair use".

Except in specific cases (such as where the copyright material is sold), breach of copyright is not a criminal offence, but only covered by civil law.

Special cases

I am not aware of any of the following being tested in court.

A reference to a copyright work (e.g. a hyperlink) is not a copy of that work per se; it is like a bibliographical reference. However, the link can be presented in such a way as to fool the naive reader, and then some other tort such as "passing off" might apply.

Some software is activated through passwords provided to the end-user by the supplier on a one-to-one basis. Publishing such a password (e.g. on a "cracks list") could be viewed as breaching the copyright in the password, but it is not clear whether the password is an "original work".

Similarly, tools that crack protection on software may contain copyright material within them, and so be a breach of the copyright laws. Alternatively they may be actionable as aiding and abetting breach of these laws.

Action

If the ISP is notified that a web site holds copyright material, or that a customer is posting copyright material to Usenet, they should contact the customer requesting one of

  • evidence that the customer is the copyright holder;
  • evidence that the customer has permission from the copyright holder;
  • an explanation of which "fair use" exemption applies;
  • a written undertaking to remove the material and desist from any such action in the future.

If a satisfactory response is not received within 5 working days, the customer's access to the relevant facility should be terminated.

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8. Trademarks

Description

A business is entitled to have its name, logo, special product names, and suchlike protected against certain kinds of misuse. A summary of the relevant law is available from the Patent Office web site, but the most common form of infringement occurs when:

  • a third party uses a sign identical with or similar to a registered mark in respect of identical or similar goods or services
  • and the public is likely to be confused by the similar mark.

Trademark law does not appear to prohibit use of a trademark with due cause, such as in comparative advertising, or when not in the course of trade.

Special cases

The use of phrases like "the unofficial home page of XXX", where the customer is not XXX, can amount to a derogatory use of the trademark and so is probably a breach of the trademark of company XXX. However, if the page makes it clear that it has no connection with company XXX (the term "unofficial" is probably not sufficient for this) then it would be difficult for the latter to allege "passing off".or when not in the course of trade.

Even if use of a trademark or logo is permitted under trademark law, it may well be that use of the logo is a breach of copyright.

Action

If the ISP is notified that a customer infringes a trademark, the requisite action depends on whether the use constitutes a misuse of the trademark or not. If it is, they should contact the customer requesting one of:

  • evidence that the customer has registered the trademark themselves;
  • evidence that the customer has authority to use the trademark;
  • an explanation of why a "due cause" exemption applies;
  • a written undertaking to remove the material and desist from any such action in the future.

If a satisfactory response is not received within 5 working days, the customer's access to the relevant facility should be terminated.

In the case of a logo, the issue of copyright ownership or licensing of the logo, or "fair use", should also be raised at the same time.

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9. Defamation

Description

Defamation - libel and slander - is the publishing of a statement that lowers another person's reputation. There are a number of defences to a charge of defamation, notably that the statement is true.

A significant change in the law was the Defamation Act 1996. Under the Act, an ISP has no responsibility for publication if:

  1. He was not the author, editor or publisher.
  2. He took reasonable care in relation to its publication.
    - And -
  3. He did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

It is not clear, however, what action is required once the ISP is notified of the publication, particularly in the case of a web site.

Action

Very unclear. There does not appear to have been a relevant case brought under the new law.

When deciding how to handle the matter, the ISP will need to balance the rights of the customer and of the person allegedly defamed, and their own risks by continuing to carry the material. In particular, they should realize that the "innocent dissemination" defence might not apply once they have been notified (this is an open point of law).

Principles described in previous sections, such as requesting indemnities, should be considered.

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10. Obscene material

Description

Obscene material is material that is likely to "deprave and corrupt" the audience that it reaches, or is likely to reach. It is an offence to possess obscene material with intent to distribute or sell it; the defences are broadly the same as those for possession of child pornography.

The terms "deprave and corrupt" are not defined in the law. Rather, they are left for juries to decide in individual cases. This has the advantage that the law can adapt to changing standards, but the disadvantage that it is not easy to determine the current limits.

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