Internet service providers (ISPs) here have welcomed the first legislation likely to directly affect day-to-day Internet use. But a senior information technology lawyer predicts the current wording of the Child Trafficking and Pornography Bill means ISP executives could face conviction for something outside their control.

The Bill was published last December, and is due for debate during the current Dail session with a view to enactment by Easter, according to the Minister for Justice, Mr O'Donoghue.

Though the Bill does not specifically mention the Internet, it defines child pornography for the first time in Irish law, specifically including images and audio representations of children in computer files and images generated by computer graphics. "Children", in the Bill, are defined as under the age of 17.

In addition to outlawing child trafficking and exploitation, with penalties of up to life imprisonment, the Bill proposes to make it illegal to knowingly possess, produce, distribute, print, publish, import, export, sell or show any child pornography. It also bans the advertising of child pornography, as well as possession for the purpose of distribution, publishing, exporting, selling or showing of child pornography.

The ISPs were consulted during the Bill's drafting. Mr Cormac Callanan, the chairman of the Internet Service Providers Association of Ireland (ISPAI), is a member of the Department of Justice working group on illegal and harmful uses of the Internet. Its interim report is expected shortly to welcome the proposed measures. He says he is "very positively in favour of the Bill".

Mr Colm Grealy, managing director of Ireland On-Line, the largest ISP with nearly 36,000 dial-up users, also welcomes the Bill, but says the word "knowingly" is crucial, and was inserted at the request of the ISPs.

He says much of the child pornography on the Net is transmitted in the form of private correspondence, unknown to the ISPs, who, he contends, are more like carriers than publishers. He also says that it is "not practicable" to block access to specific Websites, since they can frequently move location.

But besides unwittingly distributing child pornography, another worry for the ISPs is the charge of possession.

Frequently an ISP will cache or store Web pages on its own computers for up to 24 hours after a user downloads them, so that if the same page is requested again it doesn't have to be retrieved from the other side of the world.

Mr Grealy again points to the term "knowingly". He doesn't know how many pages are cached daily, but says the company has 38,000 log-ins per day and average duration is 23 minutes. There is no way IOL could monitor the contents of all the cached pages, he says.

However, the current wording of the Bill applies the term "knowingly" to possession, but not to possession for the purpose of distribution.

Mr Don McAleese, partner and head of the IT Law unit at Matheson Ormsby Prentice, says the term "knowingly" may not get ISPs off the hook. If, he says, they have a good idea child pornography is contained on a site, they could legally have "constructive" as distinct from "actual" knowledge of its presence.

Thus, by knowing there is in all probability some child pornography in their caches, even though they do not specifically see it, they may be liable of knowingly possessing it for distribution.

Mr McAleese also says the Bill is limited in the area of statutory defence. "There is no defence of possession for a legitimate reason," he says, referring to the section of the Bill which says the only people who may possess child pornography are those preventing, prosecuting or investigating offences under the Bill itself, or censors. Thus there is no specific exemption for ISPs, or, perhaps, for journalists investigating child pornography.

According to Mr McAleese, legitimate reason for possession was allowed for in British legislation and in two previous private members' bills, one introduced by Senator Mary Henry and the other by Mr Eoin Ryan and Mr O'Donoghue himself when in opposition.

Under what Mr McAleese describes as a "now common" provision in this Bill, senior management in ISPs cannot afford to turn a blind eye to the new offences. The Bill states that senior company employees, including company secretaries, managers and directors, may be personally liable for offences committed by the company. "ISPs need to be aware of this," says Mr McAleese.

Eoin Licken is at eoinl@iol.ie