Hosting Provision – on the verge between content and electronic communications

by Monica Adriana Banu – legal advisor

Most of the times the question “What is hosting?” is answered by “sites hosting”; thus the term “hosting” becomes generic for what web hosting or web site hosting mean. A thorough survey of the specific technical details of such service shall prove that the a service whereby files are hosted, used and maintained on more websites (web hosting) is only one hosting category, one of the means of providing this type of service. Another confusion created regarding hosting comes from its connection with the information content hosted, the hosting provider being mistaken, most of the times, for a “content provider” (information content). This study is first aimed at identifying web-hosting as one of the means for providing hosting services by proving hereunder that web-hosting is not synonymous with supply of information content, being rather an electronic communication service as defined in the Government Emergency Ordinance no. 34/2002 regarding access to public electronic communications networks and related infrastructure, as well its interconnection, with subsequent amendments and supplements.

1. Hosting – technical details /categories

Hosting services are grouped in the following categories: full-featured hosting, web hosting, file hosting, game hosting, remote backup services, DNS services and email hosting. A company can simultaneously supply full-featured hosting services, as well as web-hosting and email hosting services, which is quite frequent. Such an activity is aimed at satisfying all customers’ needs (all market demand) by supplying a large and complete range of services. The particular features of each category shall allow us to understand to what extends the link between such types of hosting services and the information content entitles classification of their providers as “content providers”. The detailed scheme looks as follows:

I. Full-featured hosting

a) VPS (virtual private server) is a method of physical partitioning a server into multiple servers, so that each virtual server has the appearance and capabilities of running on its own, as a dedicated server. Virtualization technique is used to allow multiple logic servers to operate on the same physical server. Each virtual server can run its own full-fledged operating system, have its own settings and can be independently configured and rebooted.

b) Dedicated hosting (dedicated server or managed hosting service) is a type of Internet hosting where the client leases an entire server, not shared with anyone. This is more flexible than shared hosting, as organizations have full control over the server(s), including choice of operating system, hardware, etc. Server administration can usually be provided by the hosting company as an additional service. In contrast to collocation, the server hardware is owned by the provider. Dedicated servers are usually kept in data centers and are provided with maximum power supply and served by HVAC systems.

c) Collocation center is a type of data center where multiple customers locate their networks, servers and storage gears and interconnect to a variety of telecommunication networks and the networks of other service providers.

II. Web hosting – is a type of Internet hosting service that allows individuals and organizations to make their own websites accessible via the World Wide Web. Web hosts are companies that provide space on a server they own for use by their clients as well as providing Internet connectivity, typically in a data center. According to their specific features, we have the following web hosting services:

a) free hosting is a free web hosting service, often of limited functionality. Web hosting companies will either provide a subdomain or a directory.

b) Shared hosting or virtual hosting service refers to a web hosting service where several websites are hosted on one web server connected to the Internet. The provider usually provides server administration, software installation on server, regular update of the security system and technical support. Customers are offered also a web-based control panel system (cPanel, DirectAdmin, Plesk, InterWorx, Helm, H-sphere, etc), that allows user-friendly administration of the websites and clients’ applications.

c) Clustered hosting technology is designed to remove the inherent problems encountered by typical shared hosting infrastructures. This technology provides customers with a “clustered” handling of security, load balancing, and necessary website resources. Clustered hosting “virtualizes” the resources beyond the limits of one physical server, and as a result, a website shall not be limited to one server. They share the processing power of many servers and their applications are distributed in real-time.

d) Application-specific hosting:

(i) Blog hosting – is a service that provides the customer with a technical facility consisting of a Content Management software, specifically designed for creating and maintaining webblogs;

(ii) Guild Hosting – is a specialized type of web hosting service designed to support online gaming communities. The services typically offered by such a service may include public or private forums for members to communicate with each other;

(iii) Image hosting service – allows individuals to upload images to an Internet website. The image host will then store the images onto its server, making them available on-line. (iv) Video hosting – allows individuals to upload video files to an Internet website. Similarly to the image hosting, the video files will be stored on the server, where they can be accessed by the public;

(v) Wiki farms – in this case, the web hosting uses the so-called server farms. They are arrays of servers maintained to meeting the server requirements over its physical capacity. Usually server farms shall have both a main server and a backup server performing one single function. In case the main server fails, the backup server takes over its functions.

III. File hosting (file hosting service, online file hosting, online media center) – is an Internet hosting service specifically designed to host static content, typically large files that are not web pages. Usually, they allow web and FTP access. They can be optimized for serving many users (as is implied by the term “hosting”) or be optimized for single-user storage (as is implied by the term “storage”). Related services are video sharing, virtual storage and remote backup.

IV. Remote backup service – a remote, online or managed backup service – a service that provides users with an online system for backing up and storing computer files. Online backup systems are typically built around a client software program that runs on a schedule, typically once a day. This program collects, compresses, encrypts, and transfers the data to the remote backup service provider’s servers.

V. Game server hosting – the server used in this case is a game server. Any video game played over the internet generally requires a connection to a game server. There are two main types of game server provider, those based on Windows operating systems, and those based on Linux or FreeBSD. Game server providers often offer web based tools to help control and configure the individual game servers and most allow users to modify the leased games.

VI. DNS hosting – is a service that runs Domain Name System servers. The service associates IPs to domains. Most domain registration providers, however not all, offer also DNS hosting together with the registration service.

VII. E-mail hosting – is an Internet hosting service that runs on e-mail servers. E-mail hosting services differ from typical end-user e-mail providers such as webmail sites. They cater mostly to demanding e-mail users and Small and Mid Size (SME) businesses that do not want to administer their own e-mail server. E-mail hosting providers allow for creating a large number of e-mail accounts, o different domains, hosted on one server.

2. Differences between content provider – hosting provider

If it is obvious that the hosting provider involves in information content (Blog hosting, Guild Hosting, Image hosting service, Video hosting, File hosting, Game server hosting), both the customer and the provider may be identified as content providers. In all such instances, the hosting provider does not limit just to making available for each customer the hosting-specific technical facility, access to host server, but also handles administration by intervening on the content for a better information management. Their role to keep on servers certain applications in a certain order, in a certain format or design, available on a certain interface managed by the provider, turns them into “content providers” –providers of information content due to their active involvement in the stored data or information. Their behavior is very much “publisher-like”. The similarities between content providers and publishers have been debated in the context of their liability for the posted, published content.

In answering the question related to who is liable for the information posted on a certain web page, debated in a forum and that could have defamatory nature or for applications available on certain serves able to violate third parties’ rights, such as the intellectual property rights, the American legislator came up with a method of correct qualification of information services providers as being or not a “content provider” or “publisher”.

Content providers are liable, on the grounds of Digital Millennium Copyright Act (DMCA) – Section 230, for „(…) producing and developing Internet-based information” (…)”. The definition developed by DMCA allows us firstly to identify as content provider only the information services provider that “produces and develops” a certain type of information content, whether this content is an online information or an application available through certain services. Additionally, the liability is limited for information services provider that cannot be classified as publishers, providing that they meet certain requirements. That is to say, on the grounds of DMCA provisions, any provider of information services that is neither content provider nor publisher shall be absolved of liability for the information content “transported” by the relevant services or that can be accessed by means of such services. We also note that, unlike Game server hosting, for example, the supplier of web hosting services or dedicated servers cannot be ranked as content provider simply because we cannot speak of “producing or developing content” or of any other involvement of the supplier. The web host exclusively provides customer’s access to a certain server based on a certain Internet connection. Not including web hosting in the category of content providing services and thus not assuming responsibility for such contents, is generally supported by the following considerations:

– no liability could have been defined for facts that are not condemnable since the legal liability is initiated only when the rule of law is affected or when the normal and proper performance of the social relations are infringed, leading to affecting legitimate personal rights and interests.

– providers’ liability as far as concern the information content carried through their own network, accessed through their services, can only operate in the context of a direct connection between such provider and the relevant content. The interest to be protected in case of information content liability cannot exist but in case of direct or indirect involvement of the provider in the contents that can affect the said interest. In case of game, video and blog host, the situation is however different. Such host usually stores and processes the relevant information contents. Processing, storing and making them available to the public implies a prior agreement on all data and information in such contents, while their administration, understood as ensuring easy public access, shows a direct and obvious involvement.

It is thus justified to hold providers of such services liable for the contents delivered. 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 comes to complete the afore-said. The Directive on electronic commerce contains provisions that limit liability of the information society service providers (art. 12-15). The application of such protection is classified according to the activity rendered, namely mare transmission, storing or hosting.

Art. 12-15 of the Directive 2000/31/EC are implemented in Law no. 365/2002 on electronic commerce, with subsequent amendments and supplements. According to art.11, paragraphs (2) and (3), services providers are exclusively liable for the information supplied by them self or supplied on their behalf, their liability being limited when the information is exclusively mediated or stored or in the case when the service offered simply facilitates access to such information “(2) The service providers are responsible for the information they provide or provided on their behalf, (3) The service providers are not liable for the information that is sent, stored or to which they facilitate access under the conditions provided by arts. 12-15.”) The text under paragraph (3), corroborated with the provisions of art. 14 also allow us to identify the hosting providers as providers of services that facilitate access to information due to the storing-hosting activity performed and certainly not as information content providers. Interpreting per a contrario the legal requirements stipulated by art.14, conditions that such a web hosting provider should meet in order to be granted the said protection, we can identify inclusively the circumstances when such hosting providers may be held liable for the information content they facilitate access to. (“Art.14: Permanent storage of information, storing-hosting

(1) If an information society service consists on the storage of information provided by a recipient of the respective service, the provider of that service is not liable for the information stored at the request of the recipient, if the following conditions are met:(a) the service provider does not have actual knowledge of the fact that the activity or the stored information is illegal and, as regards claims for damages, is not aware of facts or circumstances from which there appears that the respective activity or information could damage the rights of a third party;(b) upon obtaining such knowledge about the fact that the respective activity or information is illegal or about facts or circumstances from which it appears that the respective activity or information might damage the rights of a third party, the service provider acts rapidly to remove or disable the access to it.

(3) The provisions of paragraph (1) do not apply when the recipient acts under the authority or control of the service provider”).

Therefore, such a hosting provider shall be held liable to the extend it is aware of the illegal activity of stored information, of circumstances or facts that could give indications that the rights of third parties are affected or that the recipient of the service acts under the authority of the provider. The question raised is how relevant is to hold the hosting provider accountable, as provided under art. 14, paragraph (3). The recipient of the service, as defined by the law, can be but the beneficiary of the service, that is to say the hosting provider’s customer. An accurate interpretation able to explain the reasons for initiating liability in such a form could be based only on the principle of indirect liability, especially on the perpetrator’s liability for the deeds of responsible party. Thus, the activity of the customer of making available to the public any alleged illegal information materials incurs liability of the hosting provider too, to the extent the two parties involved are in any way subordinated one to another, with the hosting provider directing, guiding and controlling the activity of its own customer regarding the content in question.

We look again into the law and first notice that the text eliminates any doubt concerning the hosting provider’s activity, identified as an information society service. Another issue is related to the assumption considered to determine its involvement in the information or content. Hosting providers are, as stated under art.11, paragraph (3) providers that only facilitate access to content and have not direct relation whatsoever with the information content, therefore nothing to justify incurring liability for the information which they only facilitate access to, meaning they don’t produce or intervene on such information. In the opposite situation, we seem to have the “recipient of the service”, the customer of the hosting service. In this respect, the legislator seems to ground on the assumption that provider is liable for the contents just because it developed, edited in any form, made them available to the public, that is to say it is a real provider of information content. The existence of this very assumption is the only justification for holding the hosting provider indirectly liable as provided under art. 14, paragraph (3).

Regarding the information content it seems relevant to mention the Communication sent by the European Commission to the European Parliament and Council regarding the illegal and detrimental content available on the Internet, a document that outlines provisions supporting the theory of clearly distinguishing between the content provider and hosting providers or web hosting providers.

The players in the so-called Internet regulation are here identified as: authors, content providers, hosting providers storing and making documents publicly available, networks operators, access providers and users. Clearly, the scope of the content providers does not cover hosting providers and, just to strengthen the argumentation grounding such differentiated listing, at least with regard to the subjects we are interested in, the Commission specifies that such hosting providers shall belong to the category of those “storing and making documents publicly available“.

More clearly, the text of Chapter 2 of the Communication is grouping hosting into 3 categories, namely: services involving hosting content produced by themselves, or by users or by third parties. The first, namely providers of content produced by themselves are identified by the Commission as “content providers” (“those who produce content are referred to here as content providers”). The conclusion that can be drawn is that, indeed, content provision represents production and development of any information that forms the content. Another important issue discussed by the Commission in communication relates to including hosting providers in ISP – Internet Service Providers category and distinguishing them from IAP – Internet Access Providers that are defined as “those providers that exclusively offer access to Internet”. Therefore we have:

1. Internet access providers, specialized in offering access to the Internet;

2. Internet service providers, who offer additional services such as hosting content – hosting provider with the 3 afore-mentioned categories.

The following specification is also outlined: “The term Internet Service Provider is often used generically, without a clear distinction being made between the service of providing access to the Internet and the service of hosting content; the same organization can of course fall within both categories.

The differentiated liability applicable to the content providers, on the one hand, and internet access and web hosting providers, on the other hand can motivate including differentiated regulation of the content from that of the transmission referred to in the Framework Directive since, as specified in the Communication, although: “internet access providers and hosting providers play an important part in providing users’ access to information content, one should not forget that the key liability for the content lays with the content authors and providers”. It is thus acknowledged the involvement of the internet access providers and, moreover, of the hosting providers in the field of information content accessibility, without such involvement triggering any liability.

3. Web hosting – electronic communications services

Upon including hosting providers in the category of providers of information society services and distinguishing hosting providers (more specifically web hosting providers) from the content providers, a matter that needs further clarification relates to whether an hosting provider is a also a electronic communications provider or not. An obvious link between a Provider of Electronic Communications Services and a Hosting Provider is outlined also by the document presented above, however with different wording (Internet Service Provision, not Electronic Communication Provision).

Art. 2 letter c) of the Framework Directive, defines electronic communications service as: “a paid service that fully or mainly consists of sending signals by means of electronic communication networks, including telecommunication and transmission services by means of networks used by radio broadcasting, however not content provision services by means of electronic communications networks and services; it does not include information society services as defined in Directive 98/34/EC that do not fully or mainly consist of sending signals by means of electronic communication networks.”

From the per a contrario interpretation of the last phrase it results that an information society service consisting entirely or mainly in sending signals by means of electronic communication networks is still an electronic communication service.

The technical details about what hosting, especially shared hosting, means, are themselves reasons for considering such a service nothing else by an electronic communication service. More specifically, accessing web pages can be perceived as an interaction between customer’s computer and provider’s server. The browser on customer’s computers sends commands to the server that, upon receiving them, returns a certain web page to the customers. Sending information from server to customer’s computer is done by a series if TCP/IP protocols, the packages sent by the customer to the servers having associated reply packages from the server. Therefore such sending of packages, signals through the networks is critical for shared hosting operation. Such a service cannot be designed outside such transmission. To the extend the provisions identifying hosting provider as supplier of information access or content services, the additional reasoning may even include that fact that such access, a key feature of the service in question, is achievable by sending signals in the network. The access is thus defined as the key feature, including for internet providers, and, to the extend they supply only internet access, they can be identified as the IAP – Internet Access Providers referred to in the Communication of the European Commission. The only difference between them and the hosting providers is that the latter make available from the customers a facility whereby they can access the information content in the own server account, while internet providers offer access to the entire information material in the “while network” (Internet).

With a view to providing a complete and accurate interpretation we can also use the definition of the electronic communication services outlined in the DMCA provisions (Digital Millennium Copyright Act). The correspondent of the wording “electronic communication services” is to be found in the US legislation as „interactive computer service” more precisely “any information service or system that allows multiple-user access to servers, including any service or system that provides Internet access”. This category also includes “access-software provision” where „access software provider” is defined as that supplier making available for the customer certain “software facilities that allow, among others: access to or content allocation, content sending, receiving, displaying or organization”. There is no doubt that content access or allocation, making available for the customer software facilities whereby this can organize and display content, are in fact objectives that are inherent to the access service supplied by a web hosting provider.

By virtue of the afore-mentioned, we can conclude that a hosting provider cannot be classified as content provider in all circumstances, since we start from the assumption that it is, by right, a provider of information society services whose particular features allow them to fall within the scope of electronic communications.

Articolul următor IPR on fonts
Monica Lupașcu Romanian Lawyer since 2005 with LL.M. in Intellectual Property Law. She currently activates as European Trademark Attorney and internet and technology legal practitioner.

Răspunde și tu