This article seeks to give the reader a brief insight into the rationale behind the increasing trend towards imposing greater liability on Internet Service Providers (ISP's).

Traditional thinking has been that the position of an Internet Service Provider was like that of the traditional telecommunications carrier - that it was simply a conduit that passively allows for the transmission of data and was therefore not responsible for the nature, or content of that data. The simple logic behind this train of thought is that it would be unjust, unreasonable and impractical to expect an ISP to monitor all of the services that it may give access to, so as to safe guard against illegitimate use and or criminal activity. This is an approach that is based in true practicality. Many ISP's host numerous web-based services, which themselves provide access to numerous web pages and services to a worldwide audience. It has often been contended that placing such a burden on an ISP would adversely affect the free flowing nature of the Internet. This "conduit immunity" which is extended to ISP's is being increasingly eroded. The principle reason for this is based in the fact that the ISP can be considered to be the gateway to the Internet and web-based services. The ISP is arguably best placed to block and remove offensive material. Thus, by regulating the manner in which ISP's respond to abuses of the Internet, major advances can be made to ensure that the Internet remains the Super Information Highway and pulls away from the danger of becoming a haven for illegitimate practices and illegal activities. This move away from the conduit exception may also be the regrettable recognition that self-regulation of the Internet is, to a large extent, unworkable.

The principle complex issues facing the ISP are as follows:

• Content liability; for example defamation
• Intellectual Property Rights
• Crime detection and Surveillance
• Jurisdictional Exposure

These issues are symptomatic of the very nature of the Internet; it is a trans-national, multicultural open forum, which for the present is virtually unregulated.

It is a most interesting time to address the question of ISP liability. The legal battles which faced the ISP "Yahoo!" may well set an international precedent with regard to this area of the law for years to come. Yahoo! appealed before a US Federal Court against a ruling handed down against the provider, by a French court, ordering it to bar French citizens from being able to access Nazi memorabilia auctions hosted through its portal. At the heart of this matter was the tortuous problem of applicable law in Internet based legal disputes. This will be considered below. "Yahoo!" may face yet another arduous legal challenge arising from its alleged failure to properly enforce its terms and conditions with regard to keeping obscene images and content off its "Geocities". This site allows private users to establish and maintain their own websites, and Yahoo Chat areas (See Wired.com 19 th of June '01). Yahoo! has since removed the offensive privately run sites at the centre of the controversy. The basis of the difficulties which faced the high profile service provider Yahoo! are common to the vast majority of ISPs, including those operating in the Educational sectors, be they Further or Higher Education Institutions. Much debate is currently taking place in the courts, amongst legislators, ISP representative bodies and public lobby groups, as to how much of a burden should be placed on the ISP. The compromise position of "Notice and Take Down" is quickly becoming a recognised and accepted way forward. The basic premise is that an ISP may not be automatically liable where it acts, as expediently as is reasonably possible, to block and or remove illegal or infringing material upon receiving notice of the existence of such content, or services being made available through its facilities. The two key aspects to this surfacing are the type of notice which must be served on the ISP, and question as to what is considered reasonable with regard to acting expediently, to make the material or service in question inaccessible. The ISP must ensure that it does not act in an overly protective manner. If it bars access to a commercial activity without just cause it may have to face substantial compensation claims for losses of revenue sustained by the commercial entity involved. "Notice and Take Down" will be considered in detail below.

Another elusive issue is the debate surrounding Freedom of Expression on the Internet. The US approach to Freedom of Expression has recently been illustrated in a case where two high school pupils were arrested for maintaining a website, which had become notorious in their school. The site compiled the names, telephone numbers, eating habits, comments on appearances, alleged parental marital problems and alleged "exploits" of a considerable number of their female classmates. Ultimately no criminal prosecution was brought against the youngsters, as the relevant harassment penal legislation requires there to be "direct communication" between the accused and the victim. It was found that the website fell out-with the scope of the legislation. Civil liberties groups in the States have hailed this as a victory for free speech and assert that this activity was most certainly not criminal behaviour. Of course, the creators of this site may have to face a civil claim for defamation. The reason why it is important to consider the US approach to freedom of expression at this juncture is that it may be said to be very much in contrast with approaches adopted in other jurisdictions. So for example an ISP, which is a global player, may face a multitude of differing legal regimes, yet may have to be equally responsive to each of them. The compromise position that has to be reached must seek to balance each of these issues in a fashion, which duly reflects the trans-global reach of the Internet.

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CNN.com - Web challenges traditional obscenity standard - Dec. 11 ... The Supreme Court has not taken up the question of what is considered obscene since 1973, before the VCR and the Internet revolutionized how people view ...

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