NEW MEDIA: SPOTLIGHT ON INTERNET SERVICE PROVIDERS - Is the House of Lords correct to consider ISPs as 'publishers'? Further debate is needed before ISPs can be legally defined

It's almost impossible to send up the workings of the House of

Lords - reformed or unreformed. It passed way beyond self-parody aeons

ago, probably when Queen Victoria was a mere slip of a girl.



With the plump form of a lugubrious lord chancellor squatting drowsily

upon the woolsack and the air thick with the centuries-old reek of

powdered wigs, camphored ermine and wax-polished wood panelling, the

inhabitants of the chamber can give free rein to an extravagant taste in

foppish 18th century circumlocutions. They do a lot of "begging to move

that the house do now resolve itself" sort of stuff.



At eleven of the clock a few days back, our Lords assembled to ponder

amendments to the Tobacco Advertising and Promotion Bill. They were

principally debating who could be held legally responsible if, in the

future, the provisions of the bill were breached and tobacco ads were in

some way disseminated. In particular, they were considering the

definition of a "publisher" as opposed to a "printer" and a

"distributor".



They were in fine form. Lord Monson told a delightful little anecdote

about the brother of one of his daughters-in-law who (the brother, that

is) ran a printing company in Nairobi and had been thrown into prison

for upsetting president Moi of Kenya.



Meanwhile, in attempting to close off all possible loopholes in the

bill, as it might be interpreted in any imaginable parallel universe,

they began speculating on whether its provisions might extend to "a

newspaper delivery boy, who, technically speaking, would be a

distributor". That was Lord Monson again.



They are clearly a series of characters who resemble Paul Whitehouse's

Rowley Birkin QC character in the Fast Show. It's all great theatre and

great fun - until you realise that they're not only for real, but

they've just turned their attentions to the internet.



There was no holding them once they got into their stride. Before they

adjourned for a late but thoroughly agreeable luncheon at 3.25 pm, they

had somehow managed to convince themselves that internet service

providers are not to be regarded like the newspaper delivery boy, nor

are they yet akin to the humble printer. They must be seen in law, where

the dissemination of advertising materials are concerned, as publishers.

ISPs should be responsible for content on the internet sites that they

host or enable to be disseminated.



This is not yet legislation, of course, and the House of Commons now has

a chance to amend the most imaginatively ambitious of the Lords

amendments, particularly this ISP stuff. But isn't this sort of

knock-about actually becoming tiresome? It was certainly more in

weariness than anger that the Internet Services Providers Association

responded last week.



A spokesperson stated: "If the legislation goes through as it is now

worded, it would be in conflict with the EC's e-commerce directive which

holds that ISPs are merely conduits. When that comes into force in

January 2002, it must be incorporated into UK law - so if the tobacco

bill went through in its present form, it would create an inconsistency

in the law. In our lobbying, we will continue to point that out to the

Government."



This is an incredibly measured and restrained response. It would surely

have been justified in pointing out the sheer idiocy involved in the ISP

amendments. Shouldn't the industry now unite in making its views

absolutely crystal clear to the Government?



Simon Waldman, the director of digital publishing at The Guardian, can

see why legislators can become befuddled. After all, some ISPs are

effectively media owners too. "In that case, they, like we, have to

accept that in the eyes of the law they are likely to be held

responsible for the content on their sites - no matter where it comes

from," he argues.



On the other hand, when an ISP is merely the means by which a consumer

is hooked up to a website, it's not right or fair to expect that ISP to

be responsible for the site's content.



Waldman adds: "In all of this any legislation needs to have an

appreciation of commercial reality. While being online certainly doesn't

mean you are outside the law, there's no point in making everyone liable

for everything, if it means digital media's entrepreneurs and innovators

find themselves stifled out of existence by impractical legislation, and

the only people who really benefit are the lawyers and the

professionally litigious."



Alan McCulloch, the chairman of the IPA Digital Marketing Group, agrees

that ISP responsibility is a grey area. He states: "This may be

something that should fall into the remit of the new proposed regulatory

body Ofcom, which will combine media and telecommunications. However, it

looks like the new communications bill won't be presented to Parliament

until 2003, as it was not included in this year's Queen's speech."



In the meantime, rogue legislators continue to stalk the corridors of

the Palace of Westminster. Worrying, isn't it? Charlie Dobres, the chief

executive of i-Level, thinks so. He says: "Yes this is madness, and it

is the latest in a long line. It's a situation that's unparalleled in

any other media. Perhaps to even things up, they should start holding

trees responsible for what appears in magazines."



He concludes: "I think this has brought home to us that we need an

education drive targeted on the people that matter, especially the

people who like introducing lunatic legislation because they have

nothing better to do.



This has to have the backing of the whole advertising industry, not just

digital. After all, it won't be long before these sorts of things impact

right across the advertising industry."



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