UK: ISPs Get New Exemptions From Religious Hatred Offences

Earlier in the year we reported that the government had issued new Regulations creating exemptions for offences under the Terrorism Act 2006. Notably these exemptions cover the dissemination of terrorist information, where Internet Service Providers (ISPs) act as mere conduits, caches or hosts of information. In much the same vein, a new set of Regulations have come into force which create exemptions from liability under the Racial and Religious Hatred Act 2006.

These new Regulations are required because the general defences for ISPs found in the 2002 e-Commerce Regulations apply only to criminal and civil law in force at the time of those Regulations.

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A new set of Regulations have come into force which create exemptions from liability under the Racial and Religious Hatred Act 2006 (the ‘Act’). These new Regulations are required because the general defences for ISPs found in the 2002 e-Commerce Regulations apply only to criminal and civil law in force at the time of those Regulations.

By inserting a new ‘Part 3A’ into the Public Order Act 1986 the Act introduced several new religious hatred offences in England and Wales. Religious hatred is defined as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". Confusingly, the Act does not actually define racial hatred (the definition is taken from the Public Order Act 1986). The new offences apply to a number of different practices including intentionally using threatening words or behaviour and displaying threatening written material. In the context of ISPs, website operators and search engines, material giving rise to an offence could be inserted into website text, or on a forum or blog.

There is a severe maximum penalty in place in the form of an unlimited fine and up to seven years’ imprisonment on conviction for an offence under the Act.

The Act itself contains a substantial exemption for freedom of speech stating that:

"Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system."

The new Regulations (The Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007) also came into force on 1 October 2007. The Regulations extend the application of the "country of origin" principle to the Act. As a result, offences in the Act (and the exemptions in the new Regulations) will apply to UK-established service providers, even where they only provide services in other EEA member states.

The Regulations also extend certain protections of the E-commerce Directive to the Act. Particularly important for providers, the Regulations create exemptions from liability for relevant offences where providers act as mere conduits, caches or hosts of information:

• "Mere conduits" who transmit information provided by a recipient of the service, or who provide access to a communications network, will not be guilty of a relevant offence if they do not initiate the transmission, select the recipient of the transmission or select or modify the information contained in the transmission.

• Providers who "host" information for a recipient of the service are not capable of being guilty of a relevant offence if they did not know when the information was provided that it was threatening and was intended to stir up religious hatred or when they did find out, they expeditiously removed the information or disabled access to it.

• Providers who "cache" information provided by a recipient of the service are not capable of being guilty of a relevant offence provided that they meet certain conditions. These include acting "expeditiously" to remove or disable access to the information on obtaining actual knowledge that the illegal material has been removed from the network, that access to it has been disabled, or that a court has ordered such removal.

While the Act itself contains a fairly wide freedom of expression exemption, the Regulations are a welcome addition in terms of the further limits they place on the potential liability of an ISP or website operator. However, the fragmentary approach adopted by the government (i.e. issuing new and slightly varied E-Commerce Regulations to accompany any new criminal offences), creates a significant administrative and legal burden on ISPs and website operators who are required to keep up to date with the different rules and regulations.

In practical terms ISPs and website operators should continue to act as prudently as possible. Terms and conditions and usage policies should be clearly worded and require that anything uploaded by users must not contain any material which would potentially infringe the Act or any other legislation.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 29/10/2007.