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The Government simply cannot implement selectively those parts of European legislation that give protections to ISPs who act as mere conduits. It is, in any case, not true that the protection is absolute and it is possible for an ISP to be compelled by, for example, a court order to take action. Moreover, it is by no means clear that if the mere conduit protection were removed that it would then be possible for third parties harmed by infected machines to recover damages from an ISP. There is an assumption in the report that ISPs do not take appropriate action against compromised machines that are serviced by their networks. We do not believe that this is completely true and, indeed, evidence to the Committee made clear that the leading ISPs set user terms and conditions that enable them to isolate machines identified or notified as causing problems. It is in the interest of the ISPs to take such actions. As we say elsewhere in this response, we believe that the industry can do more to identify and aspire to best practice in this area. We believe that this holds out more prospects for innovative solutions than impractical solutions about changing liability models.

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