The government has published in draft the Electronic Commerce Directive (Hatred against Persons on Religious Grounds or Grounds of Sexual Orientation) Regulations 2010. The Regulations specifically provide that providers of information society services (ISS) will not be liable for offences under Part 3A of the Public Order Act 1986.

The E-Commerce Directive (2000/31/EC) regulates the provision of information society services which are, broadly, commercial services provided on the internet. Articles 12 to 14 of the Directive require the UK to limit the liability of ISS providers who carry out certain activities essential for the operation of the Internet, namely those who act as ‘mere conduits’ and those who ‘cache’ or ‘host’ information. The E-Commerce Directive was implemented in the UK by the E-Commerce Regulations.

Part 3 of the Public Order Act 1986 created an offence of stirring up hatred on religious grounds. The Criminal Justice and Immigration Act 2008 extended that offence to also catch stirring up hatred on the grounds of sexual orientation.

It would be possible for an ISS provider to commit either of these offences if someone used their service to stir up hatred. The new Regulations create specific exceptions from liability for the new offences for mere conduits, caches and hosts in the circumstances set out in the Directive and reflected in the E-Commerce Regulations.

Click here for a copy of the Regulations