Unintended consequences

The government is concerned. Bad things are happening. The internet is a corrupting and subversive influence, tipping bad people over the edge into depravity and evil deeds. Something must be done.

So, ministers have summoned internet companies. A Code of Conduct is under consideration for ISPs. We need their help to stop the bad things.

Child porn, radicalising websites, other distasteful or criminal material need to be controlled. They are damaging our society and creating deviants and criminals.

The call for “internet companies” to step in to try to prevent this is understandable. After all, they stand between the bad people publishing this bad stuff and the innocent users who risk being corrupted, radicalised and deranged by what they see.

Responsible action by “internet companies” is needed to tame the wilder, antisocial extremes of behaviour online.

If you pause to think, you might wonder why these internet companies aren’t already doing something about it without being dragged in to see the headmaster. Everything on the internet has some sort of interaction with an “internet company”, whether it is hosting, uploading, streaming, aggregating or whatever. If their users are doing bad things, you would have thought they might want to do something about it. Why do they need to be summoned by the government to point out the obvious?

Well, one reason might be that there was a law passed more than a decade ago which specifically exempted them from any responsibility for what their users do and publish using their facilities.

In fact, because of the way the law is worded, it almost obliges internet companies not to check or have any awareness of what their users are doing. Once they are aware of illegal or infringing activity, they are obliged to act to stop it, but as long as they’re unaware they have no liability.

The law actually enshrines ignorance as a legal defence. Awareness is an expensive and risky business so actively policing and monitoring what people are publishing is an unappealing option. Ignorance is bliss. Profitable bliss.

The law in question is the european E-commerce directive which creates broad exemptions for “intermediaries” on the internet.

The rationale for that law is obvious but the effect it has had is perhaps less positive than was intended. I have written before about the catastrophic effects for copyright and the creative industries. The problems of criminal and deviant activities which are so exercising the government at the moment would seem, at the very least, not to be helped either.

Of course it’s not true to say that internet companies should be blamed for the bad things that other people do. It’s not their fault and it’s not entirely within their power to prevent it either.

However, when you have written a law which specifically disincentises them from doing anything at all to exercise any control, and then find yourself calling them in for a meeting to ask them nicely if they wouldn’t mind making a little more effort, you should perhaps ask yourself whether you have got the balance quite right.

Pub landlords don’t make anybody get drunk but they can still lose their licence for allowing excessive drunkenness. Football clubs don’t organise riots but they can still be penalised for the bad behaviour of their fans. Where responsibility is at least partly shared, more responsible behaviour tends to emerge. Where someone is made immune from consequences, responsible behaviour is less likely to emerge.

The e-commerce directive is the unintended consequences law. Whatever protection it gave to the mewling, vulnerable, infant internet is no longer needed. The internet has grown up into a strapping teenager, able to stand on its own two feet and behave like a grown-up. It’s time it was given the responsibilities to go with the freedoms and profits.

Comments

4 Comments so far. Leave a comment below.
  1. At the same time, why are ISPs and other “internet companies” the ones who have to bear the burden of enforcing the law, and not the state? going back to your analogy of the pub landlord, sure he can throw out an offending customer or bar him from the premises, but there are times where the best way of dealing with such a person is to call the police. Are we sure this isn’t the government ducking its own responsibility in order to offset costs?

    • Surely everyone has to bear the cost of being SUBJECT to the law? Usually in commercial relationships if someone wants to pass their civil liability to someone else they do so in a contract. So an ISP who doesn’t want to bear the cost of being subject to the law would pass the responsibility on to their user. This is commonplace in commercial contracts of all kinds, including ISP and internet company agreements. Of course to do that they need to know who their user is, and they have to be able to actually pass the liability on to them when a third party tries to enforce the law against the ISP. As long as the ISP has no liability in any event, and the law isn’t enforceable against them, their incentive to help third parties take action, or to have any idea of whether their users even realise that they have liability (let alone the means to back it up) is zero. So they make zero effort and put as many barriers as they can in the way of the wronged party taking action against the person who has wronged them.

      If it’s criminal, not civil, liability then the police might still be persuaded to take an interest, although, again, ISP don’t always do much to help them.

      • Fair enough.

        I wonder though- where does the burden of responsibility more naturally lie? Clearly if an ISP is offering content hosing services to its users (do they still do that?) then it would be hosting potentially-infringing material on its servers. If it’s just providing the infrastructure for routing data from end-users to elsewhere and vice versa, then I’d assume less so, no more than the Royal Mail has the responsibility of opening and checking envelopes or packets for contraband- as far as I know, it’s there to deliver the mail, intact (unless it’s a bomb, say). If the only way to check for infringing content is to involve ISPs, then presumably, then, they are partly liable.

        You seemed to be talking about issues that could involve either civil or criminal liability in the same post, though. Presumably infringement of IP rights can fall into either category, but the likes of child porn is surely much more in the realm of the criminal.

      • Well nearly all copyright infringement is civil. My point was the state takes a different role in enforcement of civil vs criminal law. Generally enforcing civil law is a matter for the parties, not the police. In my view rights and responsibilities need a balance. If ISPs are going to be given a special right to be exempt from normal legal responsibility (and I would argue experience has now shown this to be a disastrously bad idea in any case) they should at the very least have a balancing responsibility to be able to identify and pass on responsibility to their users. Otherwise, in practice, nobody can be held accountable and infringement becomes, in practice, risk free. And that’s what we’re seeing.

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