1.1 MEANING OF ISPs AND CIVIL LIABITY
ISPs are an abbreviation of Internet Service Provider. ISPs means companies operating in Tanzania with application service license and providing Internet service in Tanzania.[1] In other words a company that provides access to the Internet for a monthly fee, the service provider gives you a software package, username, password and access phone number.[2] The accessibility of Internet allows a person to uploads any statement, materials in any form on the Internet and makes such material accessible to other users. In Rinds v Hardwick[3] the court stated Internet communication is publication provided that such publication is in a form which makes a user of the Internet to access it, read and understand what is contained within such publication.
Civil liability of ISP’s means refer to general way, to the system which recognizes a person’s obligation to compensate any harm to another’s person or property resulting from their actions or omissions. In civil liability between negligently liability or fault based liability in which a person is held liable for harm caused to others if it is demonstrated that is or her conduct was negligent or International and strictly liability which makes a person responsible for the damage caused by a certain activity regardless of the degree of diligence employed. The grounds of Internet provider liability shall be subject to the enforcement of rules which are applicable to them as content intermediaries. In Tanzania the governing legislation is Electronic and Postal Telecommunication and rules made there under including Electronic and Postal Communication (Quality of Service) Regulations, 2018,the law of Contract Act.
2.1 CIVIL LIABILITY
Various School of thought argue for the liability while others argue against. For those who argue against they maintained that ISPs are only “passive conduits”16 and some writers have described them as messengers and are no different from a traditional post office which is not liable for a defamatory letter that is posted through it or a telephone company which is not responsible for an obscene call made by a user. Thus in CoStar v LoopNet[4] the majority held that and ISP should not be held liable for direct infringement when its facilities are used to infringe a copyright with no intervention made by the ISP.
2.1.1 TORTIOUS LIABILITY
Understanding the ISP liability which violates security obligations.[5] Under tortuous liability it fall under three principles, duty of care, breach of duty of care, if duty to take reasonable care, if case brought against Internet host on the ground that losses resulting from an information transaction are pure financial losses and no duty of care to avoid pure financial losses in failure or malfunction of Internet communications issue were to have the capacity to cause physical injury or property damage it would not be foreseeable that a failure on their part might cause such loss.
In common law if you prove that particular ISPs did owe a duty of one or other of the communicating parties, the fault-tolent nature of the Internet would tend to military against any breach of that duty causing loss.
Also the issue of third party liability under common law the Internet providers has no effective control over the maker of the statement and others. This defense supersedes the old common law defense supersedes the old common law defense of innocent dissemination. The defense is available to a person if he shows that he was not the author, editor or publisher of the statement complained of, he took reasonable care in relation to his publication and he did not know and has no reason to believe, that what he did caused or contributed to the publication of defamatory statement. Regard shall be had to the extent of his responsibility for the content of statement or decision to publish it, the nature or circumstances of the publication and the previous conduct or character of the author editor or publisher.
In Godfrey v Demon Internet Ltd[6]an Internet service provider was held to be responsible for material carried on its computer and can be sued for libel. The facts of case was the defendants posted on the Internet material that defamed the plaintiff. Dispute being informed by the plaintiff, the defendants failed to take any action. Nearly 18 months late, another posting of defamatory material occurred and again the defendants failed to do anything about it.
In the case of Wennkak v Morgan[7] An Internet service provider was held not to be publishers within the meaning of section 1 of defamatory statements posted on a newspaper. However on the facts the claimants had notified the defendants that the posting was defamatory and requested that they remove it, but they had refused to do so.
2.1.2 CONTRACTUAL LIABILITY
Contractual liability is a transfer of risk that occurs when one part assume liability on behalf of another via contract.[8]In this aspect of ISPs where intermediaries will provide services to one or more of the parties infringement fundamental communication service such as access and information storage. This Internet package will help for communication services such as email receiving, WhatsApp, Facebook etc. When it occurs that ISPs fail to communicate data packets to the customers it now the legal principles of contract are governed such situation. Indeed in Tanzania context of the law of contract Act as principal legislation governing provision of Internet and other common law principle.[9] Section 73 of the Contract Act provides
” where a contract has been broken, the party who suffers, by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him…”
The provision capture the legal duty of ISPs where in two aspect that where communication which prevents the transaction from ever taking place, thinks to say a failure of basic service provision.[10] This due to observe of specific legislation governed such compensation. However, Tanzania Regulatory Communication Authority issue guidelines number 3.3.2 it provides
“ISPs shall build incident detection capabilities by deploying security measures that can detect security incident which include breach of customers data”
Under third party liability the general rule liability will only arise were a certain level of knowledge whether actual or constructive is present.[11] There may also in some circumstances be a further condition along the line that the intermediaries stands to gain some material benefit from the possession or transmission of the unlawful material in question.
2.1.3 LIABILITY FOR COPYRIGHT INFRINGEMENT
ISPs argue that they only “passive conducts some writers have described them as messengers and are not different from a traditional post office which is not liable for a defamatory letter that is posted though it a telephone company which is not responsible for an absence call made by users.[12] Thus in Another argument in favour of holding ISPs liable is that under contracts that they (ISP’s) enter into with their customers, ISPs are authorized to close down websites as well as e- mail addresses in cases of infringement. The Tanzania Copyright Act does not expressly address the issue of liability of intermediaries with regard to copyright infringement of third party content downloaded by its subscribers. The obvious reason for this is that the Act was promulgated before the advent of the internet. Moreover the drafters in their wisdom could not possibly have contemplated such. In the absence of any legislation clearly defining the liability or otherwise of ISPs, the courts should confronted with the conundrum of determining liabilities of intermediaries for copyright infringement in line with traditional legal principles. Accordingly, in Playboy Enterprises v Frena[13], the court was called to determine liability of a BBS operator for the acts of users who had uploaded and downloaded the plaintiff’s copyrighted photographs. The contention of the defendant was that he never uploaded the photographs. In fact, he removed the photographs from the BBS when he received the complaint and had since that time monitored the BBS to prevent additional photographs from Playboy being uploaded. The court found Frena liable (on the principle of strict liability and therefore avoiding the knowledge requirement) as a direct infringer for violating the plaintiff’s right to publicly distribute and display copies of its work.23 This decision was severely criticized on the grounds that it would compel intermediaries to monitor private transmission of their users in an effort to detect potential copyright violations.24 Subsequently in Religious Technology Centre v Netcom the plaintiff, Religious Technology Centre ( RTC) held copyrights in the unpublished and published works of L. Ron Hubbard, the late founder of the Church of Scientology. The defendant Dennis Erlich was a vocal critic of the Church via the Usenet newsgroup alt. religion scientology (“a.r.s.”). Erlich posted portions of copyrighted works of RTC. Erlich gained his access to the Internet through defendant Tom Klemesrud’s bulletin board system (“BBS”), which had approximately 500 paying users. Klemesrud’s BBS was linked to the internet through the facilities of defendant Netcom. When Erlich posted messages to Usenet, he transmitted his messages to Klemesrud’s computer using a telephone and a modem, and the messages were briefly stored on Klemesrud’s computer. Then the messages were automatically copied from Klemesrud’s computer to Netcom’s computers and other computers on the Usenet according to a prearranged pattern. Once the messages were on Netcom’s computers, they were available to Netcom’s customers to download. The messages were stored on Netcom’s system for eleven days and Klemesrud’s system for three days. RTC failed to persuade Erlich to stop his postings, and contacted Klemesrud and Netcom. Klemesrud asked RTC to prove that it owned the copyright to the works posted by Erlich, but RTC refused. Netcom similarly refused RTC’s request that Erlich not be allowed to access the internet through its system[14].
2.1.4 VACARIOUS LIABILITY
Vicarious liability is based on the defendant’s relationship with the direct infringer. The defendant need not have directly contributed to the infringing activity. Vicarious liability derives from agency principles of respondent superior, and will be imposed on a defendant that (1) has the right and ability to control the infringing acts of another, and (2) receives a direct financial benefit from the infringement. Unlike contributory infringement, knowledge is not an element of vicarious infringement. That is, a party may be guilty of vicarious liability without any knowledge that the bad act has occurred. A familiar application of this doctrine is the liability of an employer for the acts of its employees.[15]
In the so-called “dance hall” cases, vicarious liability for copyright infringement was imposed on the owners of dance halls deemed to have “allowed” the unauthorized public performance of musical works by musical groups. This was done even though the owners had no knowledge of the infringements and had even expressly warned the bands not to perform copyrighted works without a license from the copyright owners. Indeed “cases are legion which hold the dance hall proprietor liable for the infringement of copyright resulting from the performance of a musical composition by a band or orchestra whose activities provide the proprietor with a source of customers and enhanced income. He is liable whether the bandleader is considered, as a technical matter, an employee or an independent contractor, and whether or not the proprietor has knowledge of the compositions to be played or any control over their selection.”
In examining whether an ISP could be held vicariously liable for copyright infringement, Netcom left open the first issue: whether the ISP had the “right and ability” to supervise and control the conduct of its subscribers. With respect to the “direct financial benefit” prong of the test, however, the court found that there “is no evidence that infringement by [the subscriber], or any other user of Netcom’s services, in any way enhances the value of Netcom’s services to subscribers or attracts new subscribers.” Thus, the court held that the BBS operator and the ISP could not be liable for vicarious infringement because they did not have the requisite financial interest in the infringing conduct of subscribers.
The development of internet services provision has now develop hence the only application of common law principles are not enough to curb the civil liability. It now calls for the government to enact legislation to provide the liability for the ISPs. This also under the law of contract Act, copyright Act and Electronic and Postal Telecommunication still does not provide expressly liability.
BIBLIOGRAPHY
READINGS
Garner. B. A., Black’s Law Dictionary, Thomson & West Publisher, 20048
R Chaubey, An introduction to cyber crime and cyber law, (Kolkata: Kamal Law House, 2008).
C. Reed, Computer Law, Oxford University Press, 2011.
WEBSITES
LEGISLATION
The Internet Service Minimum Security Guidelines, 2018
The Law of Contract Act Cap 345 R.E 2019
The Electronic and Postal Communications Act, Act No.3 of 2010
The Online Content Regulations, 2020
CASES
Sega Enterprises Ltd v Maphia 948 F. Supp. 923, 932 (N.D. Cal. 1996)
Religious Technology Centre v Netcom 907 F. Supp. 1361 (N.D Cal.1995)
Godfrey v Demon Internet Ltd (1999)
Playboy v Hardenbaugh ,982 F. Supp. 503, 505 (N.D Ohio 1997)
[1]The Internet Service Minimum Security Guidelines, 2018
[2]C. Reed, Computer Law, Oxford University Press, 2011, 310.
[3]Rindos v Hardwick, Australia, Court No. 993 of 1994.
[4] 373 F. 3D 544 (4th Cir. 2004),
[5]Hi. Fengyuh, Analysis on Tort liability of Internet Services Providers, (accessed 23rd February 2022
[6] (1999)
[7] (1888) 20QBD 635 at 639
[8]www. the balancesmb.com ( accessed 24th February 2022 at 1:40)
[9]C. Reed, Supranote no.2
[10]Ibid,
[11] Ibid, 342
[12]T. The link. Liability of Internet service Provider for Third Party online Copyright Infringement)
[13]Playboy v Hardenbaugh ,982 F. Supp. 503, 505 (N.D Ohio 1997)
[14] See Farooq A., “Liability Limits of Service Providers for Copyright Infringement,” (2003) Journal of Intellectual Property rights Vol.8 No.5 p. 181-190 at 183.
[15]https://web.archive.org/web/20100219005230/http://www.isoc.org/isoc/conferences/inet/99/proceedings/3e/3e_2.htm