It was argued that the original injunction was not appropriate to an ISP and alterations to the injunction were agreed between Demon and the lawyers acting for Venables and Thompson. These alterations were approved by Dame Butler Sloss who drafted the original injunction.
So long as an ISP "takes all reasonable steps" to prevent publication of the prohibited material and upon becoming aware of such material removes it immediately from the site then there will be no breach of the injunction by that ISP.
This ruling is in line with the principles established in the E-Commerce Directive which deal with the liability of on-line businesses, in particular ISPs, for third party content, caching and hosting.
The arguement runs that an ISP such as Demon will be processing millions of messages and postings each day and cannot be expected to effectively monitor the content of each to check for banned material. Accordingly, it would be unfair to hold that ISP liable for any infringement caused by information placed on the site.
The EU E-commerce Directive, which is due to come into force in the UK by 17th January 2002, recognises that ISP’s should be treated as mere conduits and should not be liable for third party material on their systems.
However, with this protection comes additional responsibility. Once an ISP becomes aware that any material on its system is unlawful, in order to benefit from the blanket protection the ISP must immediately take steps to remove or suspend access to the unlawful material. This means that all ISPs and web hosts need to check their terms and conditions to ensure that contractually they have the right to remove any unlawful material. Otherwise they risk being sued for breach of contract.