The UK law does not offer absolute immunity to an ISP against torts on the Net. In the UK an ISP would be liable for defamatory material posted on the Net unless it has taken reasonable care and precautionary steps to prevent the publication of defamatory material.

In 1999, the UK Courts held an ISP liable for defamation, especially after the latter was aware of the defamatory content and was asked to remove the content by the injured party, but failed to do so. This exemplifies the position that in certain cases, ISPs may be liable for the content posted on their servers.

In Canada

Here, ISPs can claim innocence if they can prove they did not have any knowledge of the defamatory material and that they had not been negligent in finding out whether the content was libellous. The dilemma that arises here is that if any ISP checks the content for defamatory material, it would be editing the content and this would make its position similar to that of a publisher, thereby making it liable.

In Singapore

In contrast, Section 10 of the Singapore Electronic Transactions Act, 1998, relieves an ISP from civil as well as criminal liability founded on the making, publication, dissemination or distribution of materials or statements made in such material or arising out of any infringement of the rights subsisting in relation to such material that may arise under any law, in respect of third-party material in the form of electronic records to which it merely provides access.

In India

Recently, India enacted the much-awaited Information Technology Act, 2000 (ITA). As per Section 79 of the ITA, an ISP shall not be liable for any offence or contravention under the ITA if it can show that the offence or contravention was committed without its knowledge or despite its exercising all due diligence to prevent the commission of the offence or contravention. Therefore, it appears that the lawmakers have intended to hold the ISP responsible only if an offence is committed using its network with its knowledge or because it fails to exercise all due diligence. However, with lack of well-defined standards of ``due diligence'' to be exercised by the ISP, it remains unclear under what circumstances the ISP will be liable.

Also, an ISP must satisfactorily prove its innocence is that it had no knowledge of the content on its network. With the Net being such a dynamic phenomenon, proving knowledge of an ISP may be extremely difficult, if not impossible.

However, in the absence of any judicial precedent in the Indian Courts, it remains a question as to how the Courts would interpret this section and impose liability on the ISP.

Copyright liability

Another issue that is of immense concern is whether an ISP is liable for online copyright infringement. The questions that arise are whether an ISP is liable for direct, vicarious or contributory infringement of copyright on the Net or infact whether it is liable at all. In a landmark case of Religious Technology Center vs Netcom (1995), the US Court decided that an ISP should not be made directly liable for infringement and at the same time held that to be vicariously liable, the ISP must be in a position to control the infringer's actions and should also have derived financial benefit from the infringement.

Pursuant to a volume of judicial precedents, the US ``Digital Millennium Copyright Act, 1998'' (DMCA) was passed. Title II of the DMCA, namely ``the Online Liability Limitation Act'' clarifies the issues relating to ISP liability for copyright infringement. Under the DMCA, an ISP would not be liable for transmission of infringing data through its servers as long as the servers transmit the information automatically and the contents are not modified by the ISP. It would also not be liable for infringing material residing on its server as long as it has no knowledge of that fact and removes the material as soon as it is aware of the same. The ISP must, however, warn the customers of its intent to discontinue its services for repeated offences.

Conclusion

In the absence of any explicit regulatory provision, it is imperative that the contract between the ISP and the subscriber is clear. This will result in the liabilities of each party being well-defined in case of any dispute.

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