TODAY, while business mechanisms are metamorphosing with growing e-commerce activities, legal aspects related to business also have to adapt to the changing business environment. Often it is found that an Internet service provider (ISP) is made party to litigation regarding tortious issues such as defamation, fraud and negligence that arise over the Internet. The liability risk of an ISP for transmitting erroneous information will depend upon the standard of care that is imposed upon it and the identity of the parties to whom the provider owes a duty. The dilemma is in applying tort law principles of liability to an ISP that merely provides services and facilities to users to connect to the Internet.

Tortious Liability

Under the common law of torts, liability of a wrongdoer may manifest itself in several forms.

A wrongdoer may simply be liable for the breach of a duty imposed upon him by law.

He may be liable for negligence, ie, when he causes harm without taking reasonable care and precaution to avoid the harm.

He may also be liable for the acts of third parties, such as in the case of a master-servant relationship, where the master is liable for the acts of his servant committed in the course of employment. This sort of liability is termed vicarious liability.

Another kind of liability that exists is strict liability which necessitates a wrongdoer to compensate an injured party for any damage caused by the activities of the wrongdoer even if he was not at fault.

An ISP furnishes space to host content and material on the Internet and provides services and facilities to transmit and communicate over the Net. In most cases, it merely acts as third party conduit facilitating activities on the Net. An ISP receives and transmits a huge amount of information on a daily basis. Monitoring all the information it receives and editing it for defamatory or unlawful content is practically impossible. Therefore, most civilised jurisdictions the world-over have tried to provide some form of legal protection for ISPs from any tortious liability such as defamation, fraud or negligence that may arise. If an ISP is made liable for every defamatory statement posted on the Internet, it will tremendously affect the ``robust nature of Internet communication''.

ISPs may be forced to then restrict and monitor the provision of Internet services, which will not be advisable considering the tremendous boost that e-commerce is providing to the economy.

Legal position in the US

The legal issue of ISP liability in the US has a kaleidoscopic history. Initially, in 1991, the United States Court in Cubby, Inc vs CompuServe Inc (1991) held that the role of an ISP can be compared to that of a distributor of material. ISPs merely provide the content providers with a medium to disseminate their content. They are under no obligation to edit the content, unless they have themselves hired someone to prepare content which in turn may be published on their server. However, this position was reversed by the judgement in the case of Stratton Oakmont vs Prodigy (1995) wherein the New York Trial Court held that ISPs and online service providers would be responsible for online defamation. To overrule this judgement, the Communications Decency Act, 1996 (CDA) was enacted.

The CDA provides civil immunity to ISPs. As per Section 230 of the CDA, an ISP is not to be treated as a publisher or speaker of any information that is provided by another information content provider. It also protects ISPs from any civil liability in case they act voluntarily and in good faith to restrict access to material that may be obscene, lewd, violent, harassing etc. In fact in the landmark judgement in Kenneth Zeran vs America Online Inc (1997), the United States Court held that America Online (the ISP) was not responsible for libel and negligence arising from the dissemination of allegedly defamatory material on the ISP's electronic bulletin board. This decision was upheld by another United States Court in a later case of Bluementhal vs Drudge and AOL Inc.

These US Courts judiciously discerned the rationale behind Section 230 of the CDA. To quote the Chief Judge Wilkinson from Kenneth Zeran vs AOL Inc, he said: ``It would be impossible for Internet service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer Internet service providers might choose to severely restrict the number of type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunise Internet service providers to avoid any such restrictive effect.''

Another leading case is that of Lunny vs Prodigy Services Co (1998) wherein the New York court compares an ISP to a telephone company that merely provides communication services. It held that just as a telephone company is immune from any liability arising from any telephonic conversations, an ISP is also immune from any liability arising from any vulgar messages posted on the Internet via e-mail message, bulletin boards or chat rooms.

To be continued