[Ecommerce] UK refuses to extend legal protections for search engines

[Michelle Childs]

http://www.theregister.co.uk/2007/01/18/uk_search_engine_protection/
UK refuses to extend legal protections for search engines
Pointless, it says
By Team Register → Published Thursday 18th January 2007 17:04 GMT

 The British government will not back a change to the UK E-commerce
Regulations which would give greater legal protection to search engines
and other intermediaries. The Government says that changes should be left
to a European Commission review later this year.

The EU's E-commerce Directive of 2000, from which the UK Regulations are
derived, limits the liability of intermediaries where they host or cache
information or act as 'mere conduits' in its transmission. The Directive's
protection for an ISP is fairly clear; its protection for a search engine
is not.

Some EU Member States sought to resolve that ambiguity in their
implementing laws. The Spanish authorities reasoned that search engines
are analogous to hosting services because the service provider has a lack
of control over the content and included explicit protection for search
engines in Spain's national law. It applied the same reasoning and
protection to providers of hyperlinks and also content aggregation
services. Austria and Liechtenstein also extended their national
protections, though their reasoning was that search engines were more
analogous to 'mere conduits' than hosts. Hungary and Portugal also added
extensions for such intermediaries to their national laws.

The Directive required the European Commission to monitor the Directive's
application in periodic reports. Its first report, delivered in 2003,
recommended that all member states extend the protections afforded to
intermediaries.

With no explicit protection in UK law for search engines or providers of
links or content aggregation services, the UK's Department of Trade and
Industry (DTI) sought views on whether it should make changes. It
published a consultation paper in June 2005.

Perhaps predictably, providers of search and content aggregation services
said they want the limitation of liability to be extended. They fear a
court ruling that holds them responsible for failing to filter, assess or
censor the content that they pass on to users. They claim that the
automated processes which are essential to their operation would not be
feasible if they were made responsible for third party content and they
feel vulnerable to actions for copyright infringement, defamation and even
contempt.

Just as predictably, owners of content such as music and films, who are
fighting unauthorised uses of their works, argue that the limitation
should not be extended any further - because it would further aid those
who use and distribute works without permission. They pointed out that
search engines have developed very successfully over recent years
notwithstanding the absence of liability exemptions.

In its conclusions, published in December, the DTI wrote: "Although there
have been good arguments made both for and against the granting of an
extension of the limitations on liability to providers of hyperlinks,
location tool services and content aggregation services, the DTI, mindful
of its obligation for evidence based-regulations, has reached the
conclusion that there is currently insufficient evidence to justify any
extension to these limitations."

"In particular," noted the DTI, "there has been no significant legal
action in the UK since the Directive's implementation in July 2002". It
added that it had seen little evidence of out-of-court settlements or
notices received by search engines that showed significant legal
uncertainty among providers.

"The second review of the Electronic Commerce Directive by the European
Commission is due in 2007 and the DTI will encourage the Commission to
take on board the important issues raised during this consultation," it
said.

One of the main points raised in its own consultation, the DTI said, was
that in countries that have extended the rights there has been no
significant difference to the legal position of aggregators and hyperlink
providers.

"There appears to be very little evidence to suggest that where Member
States have limited the liability limitation to providers of hyperlinks
and location tool providers it has made any significant difference," said
the DTI's response. "There appears to be very little case law in these
Member States to ascertain their effect".

Yahoo! is listed among the respondents in the DTI report. Its main rivals
=96 Google and Microsoft =96 are not.

Copyright =A9 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.



--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
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+1.202.332.2670,Fax: +1.202.332.2673

Consumer Project on Technology in Geneva
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