Study: ISPs too eager to take down legal content

By EDRi · May 19, 2004

In a study about notice and take down procedures, researchers from the Oxford university centre for socio-legal studies were shocked to find how easily internet providers take down perfectly legal content. As mystery-shoppers they opened up 2 websites in July and November 2003, one in the United States and one in the United Kingdom with a section of John Stuart Mills ‘On Liberty’, published in 1869 and hence freely useable in the public domain.

Their website opened with the words: “The text is freely available throughout the web.” The first sentence from the essay was: “The time, it is to be hoped, is gone by when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government (…).”

The researchers sent a complaint about copyright infringement to both the ISPs, posing as the John Stuart Mill Heritage Foundation (which does not exist as research on the web suggests). The complaint was sent via a free email service, without providing a detailed address or other proof of identity.

After the third e-mail, the U.S. provider answered that the webpage would only be taken down if the complainant would provide accurate information ‘under penalty of perjury’ (language required by the Digital Millennium Copyright Act). At this point the researchers discontinued the project, “even though no signature was required and somebody with some ‘criminal energy’ could have easily continued and used the required phrases.”

In the UK though, the ISP removed the website just one day after receiving the complaint letter. The researchers conclude: “We learnt that with relative ease – sending one email – an ISP could be prompted to remove a piece of public domain content from their servers. Whilst in our symbolic case of the JS Mill extract, this may be of little import given that JS Mill’s work is replicated and downloadable in hundreds of other websites, there is no reason to believe that unique content should not be just as easily removable. We might think for example about the difficult area of defamation. It is at least theoretically possible that a powerful individual might use the apparent lack of due diligence on the part of ISPs to use the threat of liability for defamatory material to persuade ISPs to remove material.”

The study provides good insight in the differences between liability legislation for providers in the U.S. and in Europe. Roughly summarised, the European E-commerce directive of 2000 just leaves too much space for providers to avoid risks and take down any material, without having to comply to a put-back procedure. The report recommends further clarification on the legal framework and an obligation for ISPs to record and publish details about complaints and procedure.

Simultaneously, the researchers published a broader study about codes of conduct in all digital content-related industries: from gaming to mobile services and from broadcasting and the film industry to the more traditional press councils for printed media.

Analysing internet codes of conduct, the study underlines the troubles with notice and take-down in Europe once more: “In the absence of any basic transparency of ISPs with regard to this issue it is impossible to evaluate the effectiveness of this procedure or its likely outcomes. The irony of the current situation is that its apparent defectiveness renders notice and takedown tolerable: if it were more effective in removing content, and more transparent about removal and blocking, it is likely that there would be loud calls for reform.” (p.46)

How ‘Liberty’ disappeared from Cyberspace (by Christian Ahlert, Chris Marsden and Chester Yung )

Self-regulation of digital media converging on the Internet – Industry codes of conduct in sectoral analysis (30.04.2004)