How is “actual knowledge” specified in relation to the Regulations?
Regulation 22 provides that in determining whether a service provider has actual knowledge for the purposes of Regulations 18(b)(v) and 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to: a) whether a service provider has received a notice through a means of contact made available in accordance with Regulation 6(1)(c); and b) the extent to which any notice includes: i) the full name and address of the sender of the notice; ii) details of the location of the information in question; and iii) details of the unlawful nature of the activity or information in question. It is expected that the onus will be on the party alleging that liability has arisen to demonstrate that a service provider had actual knowledge or awareness but did not act upon it appropriately.
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