The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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Briefly, TPB is a Swedish website that hosts links to provide its users access to millions of  that allow the uploading and downloading of copyrighted software, films, music, and other forms of media. According to the Internet traffic ranker , it is the 80^th most popular website in the world. By comparison, Netflix is the 96^th most popular website and New 91��ɫ Times is 112^th). The site’s overwhelming popularity has not gone unnoticed – with governments and companies across the world (, , , , , , , , , , and the pressured heavily by media corporations to shut down or limit access to the site.

Thus, we arrive at the High Court ruling that the UK’s ISPs must block TPB’s IP address – a block that encompasses approximately 19 million users, representing 94% of . The reasoning behind this decision was centered on section 97A of the , which states, “The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.” Furthermore, the court ruled, there was no question that the Defendants (ISPs) satisfied the definition of service providers, that the users and operators of TPB use the Defendants’ services to infringe copyright, and that the Defendants have actual knowledge of this infringement.

There is little issue with the reasoning behind the High Court’s decision; however, the legislation itself raises questions. In my opinion, there are two issues with the legislation. The first issue is a jurisdictional problem. TPB is a website whose servers are , and is granted network connectivity through a Swedish company, Serious Tubes Network. Thus, British companies are being held responsible for content over which they wield no control because it is created by foreign companies. By requiring British ISPs to block such IP addresses, the courts are effectively limiting the companies’ consumer bases. This intervention in restricting which services these commercial entities are allowed to provide is unwarranted; since the goal of these companies is to provide access to the Internet, not monitor its content.

The second issue with the legislation is that it is difficult to logically assign fault to the ISP – for it is neither responsible for hosting, nor downloading the content. Rather, it is the hosting company that simply enables the Internet user to perform the actual acts of hosting and downloading pirated content. While the ISP is the easiest target, ease of accusation does not translate to culpability. It is one thing to its users’ actions on the Internet, but an entirely different and unjustified matter to hold them responsible for the actions of their users.

As an aside, while the IP block comes as the court’s latest method of restricting access, TPB has a reputation of circumventing both restrictions and attempts to physically shut down its servers with astonishing ease and efficiency. In response to the UK IP address ban, of its website with a new IP address that is unblocked from the aforementioned ISPs, thus allowing UK users full access to its site.

In a move that almost mocks international authorities’ attempts to bring down their servers, to use GPS-controlled, low-orbit aircraft containing microcomputers to store and transmit it server data. In doing so, TPB would severely complicate efforts to locate and shut down their servers. Perhaps it truly lives up to its reputation as “the world’s most resilient BitTorrent site”.

Byron Tse is a JD Candidate at Western University, Faculty of Law.

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Much attention has recently been paid to proposed legislation that would require Internet Service Providers (ISPs) to step up their efforts to prevent subscribers from downloading copyright-protected content through the Internet connections they provide. These initiatives are often described as "three-strikes" laws, although the term is misleading since the nature of sanctions imposed on repeat infringers varies to a great extent between the different schemes proposed. A better term to describe these initiatives is a "graduated response" system. Essentially, the ISP issues a series of escalating warnings and sanctions to subscribers who persist in pirating content over the Internet, culminating in the termination of the subscriber's account with the ISP after a number of warnings have been ignored.

What these proposals represent is a fundamental shift in the content industry's approach to tackling the serious issue of mass online piracy. Back in December 2008, the Recording Industry Association of America (RIAA) formally announced that it would end individual-level lawsuits and concentrate instead on working with leading American ISPs to implement graduated response policies. In his 2009 Digital Music Report, International Federation of the Phonographic Industry (IFPI) President John Kennedy stated that the future for commercial digital content depends specifically on "engaging ISPs in protecting intellectual property rights".[1]

The industries most affected by Internet piracy have begun to recognize that online infringement is best dealt with by collaborating and partnering with online intermediaries. These entities include not only ISPs and web hosting companies, but also websites such as Google and user-generated content sites that are abused by a small number of their user-base to make copyright-protected works available online. Websites such as YouTube have generally been open to working with content creators to prevent the use of their services to pirate protected works, including taking measures to terminate repeat violators' accounts. The content industry is optimistic that this model of cooperation can extend to other online entities such as ISPs in a similar manner.

Admittedly, graduated response initiatives have had mixed success thus far. For example, last month, the government of New Zealand postponed the implementation of its graduated response bill. Although there was vocal opposition to the measures, serious debate over the proposed copyright amendments was mired due in part to misunderstandings pertaining to key provisions of the new law (for instance, opponents took advantage of the confusion surrounding the term "three-strikes" to international observers unfamiliar with the baseball analogy). Elsewhere, similar proposals have experienced a much more positive response. Lawmakers in South Korea recently passed a bill that would call for ISPs to implement sanctions against subscribers found to be repeatedly infringing copyright works.

A variety of cooperation models between rights-holders and intermediaries have been proposed at many levels, in both the public and private sectors. Some models, such as the one recently approved by the Korean legislature, have placed the responsibility of supervising subscriber activity directly on the ISPs. Others, such as the EU IPRED directive that was recently implemented in Sweden, simply requires ISPs to pass on information of infringing activity to the appropriate rights-holder organization. Whether or not any particular model of graduated response receives widespread international adoption, it is becoming increasingly clear that cooperation with online intermediaries is emerging as the predominant strategy in the fight against pervasive online piracy.

[1] IFPI, Digital Music Report 2009, available at

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