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http://www.efa.org.au/Issues/Censor/defamation.html#ispdefences
Defences available to Internet Service Providers/Content HostsClause 91(1) of the Broadcasting Services Act (C'wlth)
The Broadcasting Services Act (C'wlth) ("the BSA") provides a statutory defence to an ISP/ICH who carries/hosts Internet contentin Australia and who was not aware that they were carrying/hosting a defamatory publication.
Clause 91(1) of Schedule 5 to the BSA provides that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(i) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or(ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.
The definition of "internet content" in the BSA excludes "ordinary electronic mail", information that is transmitted in the form of a broadcasting service and information that is not "kept on a data storage device". Hence, the Clause 91 defence will not be available in cases involving such material. In these cases, ISPs/ICHs may be able to rely on the defence of innocent dissemination (see below).
As at 7 January 2002, to EFA's knowledge, there had not been any court decisions involving use of the Clause 91 defence. (The defence may be considered in a case pending in the NSW Supreme Court Murphy v Stockhouse Media Pty Ltd & Ors, SC 20652 of 2000, which involves postings on an Internet bulletin board.) Innocent Dissemination
The common law defence of innocent dissemination has historically applied to re-distributors such as newsagents, booksellers, libraries, etc. An ISP or ICH may also be able to rely on the common law defence of innocent dissemination in circumstances where they did not know that the publication was defamatory or likely to contain defamatory matter and their absence of knowledge was not due to negligence on their part.
Whether the common law defence of innocent dissemination can be relied upon by ISPs/ICHs has not yet been determined by Australian courts. |
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