Hate Crime and Public Order (Scotland) Act 2021

Hate Crime and Public Order (Scotland) Act 2021

2021 asp 14

The Act

Part 4 – Further provision relating to hate crime

Providers of information society services

Section 13 and schedule 1 – Provision in relation to providers of information society services

79. Section 13 introduces schedule 1, which makes further provision about offences under sections 3 and 4 in relation to providers of information society services.

80. Paragraph 1 of schedule 1 sets out the conditions under which service providers may be exempted from liability under the offences in section 3 and 4 where acting as “mere conduits” for the transmission of, or provision of access to, information. This means that, provided the conditions in paragraph 1 are met, a business providing access to the internet (e.g. a home internet service provider) is exempted from liability if the person using their service commits an offence of racially aggravated harassment or stirring up hatred while making use of the internet.

81. Paragraph 2 of schedule 1 sets out the conditions under which service providers may be exempted from liability for “caching” information, that is, for the automatic, intermediate and temporary storage of information. This means that when an internet service provider automatically makes and “caches” a local copy of a file accessed by a user of its service (which is done in order to provide a more efficient service) it is not criminally liable in the event that the information consists of material relating to racially aggravated conduct which constitutes an offence under section 3, or relevant behaviour or material which is intended (or likely in the case of an offence under section 4(1)) to stir up hatred in terms of section 4, provided the conditions in paragraph 2 are met.

82. Paragraph 3 of schedule 1 sets out the conditions under which service providers may be exempted from liability for “hosting” information, that is, storing information at the request of a recipient of the service. For example, if a person uses a social network to post racially abusive or anti-religious material, inciting hatred against a racial or religious group, then, provided the conditions in paragraph 3 are met, the social network is exempt from criminal liability.

83. Paragraph 4 of schedule 1 defines certain terms used in schedule 1.