When Is an ISP Liable for the Acts of Its Subscribers?
In the United States, Internet Service Providers that follow the rules are provided a powerful shield by two federal laws. Here's how they work.
Everyone who hops on the Internet or posts a website has to affiliate with an Internet Service Provider (ISP), a company that acts as a gatekeeper for access to the Web. An ISP can range in size from America Online (AOL) with millions of users, to a small Mom & Pop business with a server in the garage. In effect, an ISP is a combination telephone company and worldwide public-access television station allowing a subscriber to say or sell anything.
So what happens when a subscriber to an ISP behaves badly and causes an injury to an unsuspecting third party -- say, by copying someone's music without authorization or making a libelous statement? Is the ISP responsible for the behavior or actions of its subscribers? Can the victim of an online injury argue that even though the ISP is not the direct cause, it can be sued because it knew of the activity, encouraged it, profited from it, or had control over it? Obviously, there's often a strong motivation to make such an argument because adding an ISP to a lawsuit provides a defendant whose pockets -- if not always deep -- will at least jingle.
The Controversy
Those who want ISPs to be financially responsible argue that ISPs are publishers like newspapers or magazines and must take responsibility for the material on their servers. On the other side, the ISPs argue that they are like telephone companies -- simply carriers that provide a means of sending information. So far, Congress and courts have favored the ISPs' position and provided guidelines that permit responsible ISPs to avoid liability for the millions of bits of digital information passing through their portals.
Start by understanding that lawsuits against websites and the ISPs that host them tend to fall into two categories: copyright infringement and defamation. A lesser number of lawsuits have also been brought for claims such as distribution of obscenity and negligence. In short, we are worried about a fairly small number of legal claims.
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