Regulations come into force this week that explain how and when a foreign company can be brought to justice in the UK over blog postings that encourage terrorism. The Regulations integrate Europe's e-commerce laws with the UK's Terrorism Act.
The Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007 were laid before Parliament on 31st May and come into force on 21st June.
The Terrorism Act 2006 is already in force. It created offences relating to the encouragement of acts of terrorism and the dissemination of terrorist publications. The Act contains a notice and takedown regime that applies to all website operators. If a person posts any remark to a blog that encourages an act of terrorism, a police constable can serve a notice on the operator of the blog requiring the removal of the offending post within two days.
Failure to comply within the two-day period, in the absence of "reasonable excuse", means that the operator will be deemed to have endorsed the post and its directors could face up to seven years in prison.
The Terrorism Act made action against UK and companies in the European Economic Area (EEA) possible and Home Office Guidance of October 2006 described procedures that should be followed. The EEA member states comprise the 27 EU member states plus Iceland, Lichtenstein and Norway.
If, for example, a blog posting is deemed a threat to public security and a police constable asked the EEA member state to effect its removal and that state failed to do so, proceedings in the UK will be possible.
A Home Office spokesperson stressed to OUT-LAW that the new Regulations do not extend the application of the Terrorism Act to service providers overseas beyond what is already possible under that Act. Instead, they restrict the circumstances in which this is possible, setting conditons that must be satisfied.
The Regulations also extend certain protections of the E-commerce Directive to the Terrorism Act.
These protections apply to intermediaries acting as mere conduits or those that cache or host third party content. They were aimed at ISPs and website hosting companies. However, the UK's implementing rules, the E-commerce Regulations 2002, do not apply to legislation that postdates them and so the protections need to be given on a case-by-case basis. This month's Regulations add the protections of the E-commerce Regulations to the Terrorism Act. The protections are qualified. For example, hosting a user's offending content is not an offence provided it is removed or blocked expeditiously "upon obtaining actual knowledge that the information was unlawfully terrorism-related".
The Terrorism Act presented a significant challenge for operators of social networking sites or any others that encourage users' contributions when it was introduced. The notice and takedown regime goes further than the laws that control copyright infringements on websites because it also applies to any "repeat statement". That is defined in the Terrorism Act as a statement which "is for all practical purposes, to the same effect as the statement to which the notice related". The two-day time limit for removal of the statement will begin to run from the date of re-publication.
The Terrorism Act says a person is not deemed to endorse a repeat statement if he "is not aware of the publication of the repeat statement" or where he has taken "every step he reasonably could to prevent a repeat statement" becoming available to the public. However, the explanatory notes to the Act provide little guidance as to what is reasonable for the host of a website, blog or message board.