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Common Carrier

We often now hear that ISPs should be classified as 'common carriers'. Sadly, and frequently the meaning of this term is quite misunderstood. The term is not particularly significant currently in UK law; it is more used in US law. However, it does have its origins in English Common law.

In years gone by, many moons ago, a traveller might end at night up in a village. There would be a single supplier of, say hostelry (only one inn), or transport, or food or mail. In each case, if the local supplier refuses to co-operate, the traveller, or even a village native, could be left high and dry. He might starve, or freeze to death. A common law rule came to be accepted therefore that certain service providers, and suppliers could not refuse to trade with individuals. Subject only to the ability to pay for the services (it doesn't matter if you starve if you are poor), the provider had a legal obligation to provide his service as requested. In th circumstances of the time, where a supplier was likely to be, in effect a monopoly supplier, it would be wrong to allow him to withhold his service.

An immediate consequence was the asking of the question. 'What if the person I assist is a criminal?' The answer came back that the supplier would be forgiven any liability for providong the assistance, provided only that the service provider did not know of the criminality involved.

As years went by, the doctrine became more refined, and, in English law fell by the wayside. In general it was replaced with statutory provisions - most notably for telephone companies and the mail.

Where does this leave us? A common carrier was somebody who was not to be held liable in law for what he 'carries'. In return, he was to be expected to carry whatever he was requested to carry. This privilege however was allowed because the person given the privilege had a monopoly which required that privilege, and because the service supplied was a necessity. Neither condition applies to the modern ISP.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 284 18 October 2013