A shield for Web site owners?

Web site owners around the world run into one common legal problem-–liability for third-party content. Should a person be liable for content posted on a site by another, solely because he operates that Web site?

The possible scenarios vary from defamation on user forums (a hot favorite in Singapore) to hosting of pirated software and cracks on pirate sites. The attractiveness of such an avenue to found liabilty is simple--while the real perpetrator may be elusive, the Web site owner is easier to locate. The big boys are not immune, as eBay recently found, when it faced lawsuits by Hermes and Tiffany in France and the United States with differing results.

The rights and wrongs of finding liability are debatable--it is unfair to burden Web site owners with liability created by other parties, but could Web site owners be encouraging this type of behavior?

While courts around the world grapple with this issue, here in Singapore, we are fortunate to have the codification of this principle in our Electronic Transactions Act. In fact, the fact that this particular section has been revised indicates its importance. I set out the section below:

10. --(1) A network service provider shall not be subject to any civil or criminal liability under any rule of law in respect of third-party material in the form of electronic records to which he merely provides access if such liability is founded on:

(a) the making, publication, dissemination or distribution of such materials or any statement made in such material; or

(b) the infringement of any rights subsisting in or in relation to such material.

(2) Nothing in this section shall affect:
(a) any obligation founded on contract;
(b) the obligation of a network service provider as such under a licensing or other regulatory regime established under any written law;
(c) any obligation imposed under any written law or by a court to remove, block or deny access to any material; or
(d) any liability of a network service provider under the Copyright Act (Cap. 63) in respect of--
(i) the infringement of copyright in any work or other subject-matter in which copyright subsists; or
(ii) the unauthorized use of any performance, the protection period of which has not expired.

(3) For the purposes of this section--
"performance" and "protection period" have the same meanings as in Part XII of the Copyright Act;
"provides access" , in relation to third-party material, means the provision of the necessary technical means by which third-party material may be accessed and includes the automatic and temporary storage of the third-party material for the purpose of providing access;
"third-party" , in relation to a network service provider, means a person over whom the provider has no effective control.

If you read it carefully, network service providers are provided with a legal excuse against content posted by third-parties, if they do qualify under the provision--the exception would be for copyright which come under the Copyright Act. Section 10 does constitute a pretty good shield--not 100 percent fool-proof, but good enough.

So before anyone goes off shooting claims to Web site owners, read Section 10 carefully first to avoid having egg thrown back at you.

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Bryan Tan

Called to the Singapore and English Bars, Bryan Tan has practised in two of Singapore’s largest law firms and an international law firm. Bryan led many industry firsts including the first mass e-mail defamation case in the world, Singapore’s first publicised telecoms competition dispute, a pan-Asian co-branded travel portal, the first privately-funded cable landing project in Singapore and the world's first registrar-level domain name dispute. His areas of practice include information technology, telecommunications, biotechnology and bioinformatics, Chinese intellectual property, entertainment law and corporate work. He is also an author of Halsbury's Laws of Malaysia: E-Commerce. He also co-wrote the Singapore chapter of 'Digital Evidence' with Prof. Daniel Seng and is writing Halsbury's Laws of Singapore: E-Commerce.