Section 34: Providers of information society services
111.Section 34 is included in the Act in order to ensure that the Act complies with the provisions set out in the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) (“the Directive”). As a result of the Directive, there are certain conditions on what terms can be imposed on a service provider established in a state in the European Economic Area (this is the EU plus Iceland, Liechtenstein and Norway) other than the UK and certain protections for intermediary service providers.
112.Subsection (1) provides that an order may not include terms which restrict the freedom of an information service provider established in a European Economic Area (EEA) state other than the United Kingdom to provide information society services in relation to an EEA state unless certain conditions, contained in subsections (2) and (3) are met
113.The conditions in subsection (2) are that the court concerned considers that the terms:
are necessary for the objective of protecting the public by preventing, restricting or disrupting involvement in serious crime;
relate to an information society service which prejudices that objective or presents a serious and grave risk of prejudice to it; and
are proportionate to that objective.
114.The conditions in subsection (3) are that:
a law enforcement officer has requested the EEA state in which the service provider is established take measures which the law enforcement officer considers to be of equivalent effect under the law of the EEA state to the terms of the order and the EEA state has failed to take the measures; and
a law enforcement officer has notified the Commission of the European Communities and the EEA state of–
the intention to seek an order containing the terms; and
the terms.
115.Subsection (4) provides that, in relation to the requests and notifications provided for in subsection (3), it does not matter whether the request or notification is made before or after the application for a serious crime prevention order.
116.Subsection (5) imposes conditions on what terms can be included in an order against a provider of intermediary services, giving effect to the protections in Articles 12, 13 and 14 of the Directive. These are services provided by mere conduits, caches and hosts (terms used in the Directive). The Directive provides that, provided certain specified conditions are met, the intermediary service providers set out above must not be liable for the information they transmit, copy or store.
117.In the case of a “mere conduit” the service consists of either a transmission in a communication network of information which has been provided by a recipient of the service (e.g. the transmission of a customer's email) or where the service consists of the provision of access to a communication network.
118.“Caching” is effectively where a service provider stores copies of a web-page, usually one which is very popular, in order to speed up access to that page as it does not have to keep going backwards and forwards to the host. The caching must be automatic, intermediate, temporary and solely for the purpose of making the onward transmission of the information more efficient.
119.“Hosting” is the storage of any information where that information has been provided to the service provider by someone using the service.
120.Subsection (6) also provides that the court must not impose any obligation to generally monitor information being transmitted, copied or stored as this is expressly prohbited under Article 15 of the Directive.
121.Subsection (7) sets out what constitutes a service provider being established in an EEA state. Subsections (8) – (10) go on to define the meaning of certain terms used in the section.
