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May 2018 WILMap Updates

May 27, 2018

News

German Supreme Court Upholds Blocking Orders

March 24, 2016
The Federal Court of Justice (Bundesgerichtshof), the highest court in the system of ordinary jurisdiction in Germany, decided on actions against internet service providers over access to websites linking to

April 2018 WILMap Updates

April 27, 2018
News Russia to block Telegram app over encryption April 13, 2018 A court in Moscow has approved a request from the Russian media regulator to block the Telegram messaging app

Entries

Animal Hospital Case

Supreme Court of Japan
Channel 2, a Japanese bulletin board, has tried to invoke the safe harbor in an online libel actions, claiming that as an operator it could not know or reasonably know

NiftyServe Modern Thought Forum Case

Tokyo High Court Decision (reversing Tokyo District Court, May 27, 1997)
( 1 ) The issue of whether a party which merely administers or maintains a website or other online forums in which users or attendees committed illegal activities may be

Toritsu University case

Tokyo District Court.
( 1 ) In this case, an individual placed on a university’s website, a webpage that contained defamation of another. The plaintiff sought damages against both the one who built

Copyright Notice Scheme – Industry Code

Pending registration under the Telecommunications Act 1997 (Cth)
An industry-negotiated graduated response Code was submitted to the Australian Communications and Media Authority (ACMA) for registration as an industry code under the Telecommunications Act 1997 (Cth) on 8 April

Piscioneri v Brisciani [2015] ACTSC 106

Supreme Court of the Australian Capital Territory (ACT)
The proprietor of an online discussion forum was held liable in defamation for posts made by himself and third parties about the plaintiff. The self-represented defendant was found to be

Bleyer v. Google Inc. [2014] NSWSC 897

Supreme Court of New South Wales
Bleyer brought a claim in defamation against Google on the basis of its organic search results. The New South Wales Supreme Court dismissed the claim on summary judgment on the

Case No. 3-2-1-43-09 (Delfi case)

Supreme Court, Civil.
( 1 ) The case arose when a popular news portal (Delfi) in Estonia published an article about the ferry connection with the islands in Estonia. The news portal enabled

Case No. 2-08-76058/74

Circuit Court of Tallinn, Civil.
( 1 ) The court ruled that the news portal that enabled commenting news articles published at its websites did not act neutrally (the activities of the ISP were not

Case No. 2-05-22224/34

Harju County Court of Harju, Civil,
The court found that news portals which enabled uncensored commenting at its website were not liable for the activities of the users of the news portal under Sections 10 and

Oberster Gerichtshof, 6 Ob 133/13x

January 23, 2014 (later confirmed in 6 Ob 188/14m, December 15, 2014 and 6 Ob 145/14p, February 19, 2015)
( 1 ) An Austrian politician sued the publisher of an online newspaper for disclosure of the names and email addresses of users who posted allegedly infringing comments in the

Oberster Gerichtshof, 6 Ob 190/03i

( 1 ) An Austrian Bishop claimed that an online newspaper article infringed his personality rights. He sued the newspaper publisher for injunctive relief. The defendant claimed that he is

Prolux, 3 Cmo 197/2010-82

Higher Court in Prague, Court of Appeals, Civil
The Court accepted the liability of a discussion forum provider for user comments. Unknown users posted several libelous statements on the website. The discussion provider refused to take them down,

Blogme.gr case

Plimmeleiodikeio Athinon [Athens Magistrates Court]
( 1 ) The court acquitted the administrator of a blog aggregator website, after a Greek TV personality sued him for defamation and indecency over comments posted about him on

Copyright Act 404/1961, July 8, 1961

As in force from June 1, 2015
Section 60a empowers a court to order an intermediary of those users to disclose information of subscribers who make copyrighted content available to the public "to a significant extent". Section

Estelle Halliday v. Valentin Lacambre

Paris Court of Appeals, 14th ch., February 10, 1999 (Gaz. Pal. 5-6 April 2000, jurisp. 19)
early case law re. ISP liability (before e-commerce Directive) : holding hosting provider liable for hosting nude or semi-nude photos of famous actress.

Hotelbewertungsportal, I ZR 94/13

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section,
The court ruled that online travel agencies are not liable for the accuracy of user-generated ratings on their web pages. First, anonymous remarks in a review cannot be ascribed to

Google Autocomplete, VI ZR 269/12

Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section,
The prediction of certain negative terms within the autocomplete function of the Google’s search engine is likely to violate personality rights. Google is not privileged by § 10 TMG because

Katzenfreund, VI ZR 101/06

Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section
The Court accepted an injunction against an Internet forum operator whose user was found to commit libel on the service. The court noted that even if the operator did not

Internetversteigerung II, I ZR 35/04

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section
The Court confirmed that an injunction against a disturber is available when no third party infringement was committed, but is feared. The Court recalled that injunctions should not lead to

324 O 660/12

Landgericht Hamburg [District Court of Hamburg], Civil,
The plaintiff, an entrepreneur, alleged that the German google-webpage contained a “snippet” from a third-party’s blog which suggested that the plaintiff had owned a brothel. In German legal language, a

Wikimedia, 4 U 78/13

Oberlandesgericht Stuttgart [Higher Regional Court in Stuttgart], Civil,
The plaintiff, a TV station owner, alleged that the German-language Wikipedia article about him contained inaccurate information. The Court ruled that Wikimedia is a “service provider” and not a “content

Walsh v Twitter

High Court of Ireland
( 1 ) Twitter International Company was ordered to disclose data about the source of tweets about a whistleblower. The tweets, which included allegations of insurance fraud, are alleged to

Cummins v Twitter

High Court of Ireland
The High Court ordered that Twitter remove defamatory posts concerning the mayor of Waterford. The order was made under s.33 of the Defamation Act 2009.

Tansey v Gill [2012] IEHC 42

High Court of Ireland
The plaintiff claimed he had been defamed on the website www.rate-your-solicitor.com . He successfully sought interlocutory orders under s.33 of the Defamation Act 2009 against certain defendants prohibiting publication of

McKeogh v Doe [2012] IEHC 95

High Court of Ireland
The plaintiff had wrongly been identified as the taxi fare evader shown in a video posted on various websites. The judgment primarily concerns the issue of whether the plaintiff could

Civil Case, 31/2010

Tribunal d'arrondissement [District Court]
recalling that the liability for any infringement committed by way of a media lies on the contributor, if known, or by default, on the editor, or by default, on the

Previti v. Wikimedia, 12262/13

Tribunale di Roma [Tribunal of Rome], Civil, IP Specialized Section.
Ruling against the plaintiff - who claimed that Wikipedia was responsible for the inaccurate and defamatory statements posted by individual users on the page devoted to him. The court found

Paoletti et all v. Google, 68306/12

Tribunale di Milano [Tribunal of Milan], Civil.
Reversing its previous decision of March 24, 2011 on the liability of search engines for the results generated by the "auto-complete" function. The court resoned that those results are not

Civil Case No. 3K-3-49/2013

Supreme Court of Lithuania
( 1 ) Applicants sought the court to declare information disseminated on a website as false, offending honour and dignity and business reputation and to adjudge non-pecuniary damages. ( 2

Civil Case No. 3K-3-479/2012

Supreme Court of Lithuania
( 1 ) The case focused on a take down request against a service provider that hosted a website dedicated to publishing consumers’ complaints. The claimant requested to disable publication

Lycos v. Pessers, ECLI:NL:HR:2005:AU4019

Hoge Raad [Dutch Supreme Court], Civil law
The Dutch Supreme Court confirmed a Court of Appeals decision holding that even when a hosting provider itself does not commit a tort by refusing to delete defamatory information on

Dariusz B. v the City of E., IV CSK 665/10

Supreme Court, Civil Chamber (Restricted Access Version Available)
Providing open access to the Internet does not result in liability for content uploaded by anonymous users. The case was filed by Darius B. who anonymously posted a letter to

Federal Law No. 364-FZ ("Anti-Piracy Law")

Amending Federal Law “On Information, Information Technologies, and Data Protection” and Civil Procedural Code of the Russian Federation
( 1 ) The law specified and extended the application of judicial and administrative enforcement mechanisms, earlier introduced by Federal Law No.187-FZ , from movies to all copyright objects, except

Federal Law No. 242-FZ.

Amending Certain Legislative Acts of the Russian Federation as to the Clarification of the Processing of Personal Data in Information and Telecommunications Networks
( 1 ) The law that came into effect on September 1, 2015. It requires that the processing of personal data of Russian citizens be conducted with the use of

Federal Law No. 97-FZ (Bloggers Law)

Amending Federal Law “On Information, Information Technologies and Protection of Information” and Other Legislative Acts of the Russian Federation Concerning Putting in Order Information Exchange Using Information and Telecommunication Networks
( 1 ) The law requires that bloggers (owners of sites with more than 3000 daily visitors) refrain from using their blog for illegal activities, ensure correctness of published information,

Federal Law No. 187-FZ.

Amending Legislative Acts of the Russian Federation Concerning the Questions of Protection of Intellectual Rights in Information and Telecommunication Networks
( 1 ) The law sought to strengthen the protection of motion pictures online and introduced amendments to the Civil Code, the Civil Procedure Code, the Arbitrazh (Commercial) Procedure Code,

Federal Law No. 139-FZ. (“Blacklist law”)

On the Protection of Children from Information Harmful to Their Health and Development and Other Legislative Acts of the Russian Federation
( 1 ) Positioned as means for the protection of children from harmful content that contains information about drug usage, advocates suicide or describes suicide methods, or contain child pornography,

Constitution of the Russian Federation,

[English version]
Article 29. 1. Everyone shall be guaranteed the freedom of ideas and speech. 2. The propaganda or agitation instigating social, racial, national or religious hatred and strife shall not be

Kontent I Pravo v. Masterhost

At the Supreme Arbitration Court of the Russian Federation.
In this case, Kontent I Pravo claimed that its rights to copyright objects, uploaded by third parties on the website that was hosted on servers provided by Masterhost, were violated.

Deregulation Act 2015 c. 20

Section 56 of this Act repeals sections 17 and 18 of the Digital Economy Act 2010 (which warranted the introduction of specific website blocking injunctions, see below).

Serious Crime Act 2015 c. 9

Section 69(1) of the Act provides that “it is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.” Schedule 3 of

Defamation Act 2013 c. 26

Section 5 of the Act sets out a new defence from liability in defamation, for the benefit of website operators. By virtue of this provision, such intermediaries are exempt from

Digital Economy Act 2010 c. 24

The DEA 2010 introduced two key procedures aimed at reducing online piracy through the “graduated response” approach – procedures labelled as the “initial obligations” and the “obligations to limit Internet

Defamation Act 1996 c. 31

Section 1 of the Defamation Act sets out a defence against liability in defamation, on which online intermediaries might try to rely on. Section 1 states that a defendant in

Trademarks Act 1994 c. 26

This piece of legislation implements the Council Directive 89/104/EEC, and in doing so, sets out in section 10 what counts as trademark infringement within the UK law. This provision might

Creative Content UK

A programme based on the “notice & notice” variant of the graduated response approach. UK ISPs have agreed to send educational notices to P2P filesharers who are found by the

R. v Allan Ellis T20087573 (2010)

Middlesborough Crown Court
On the basis of the infringing activities occurring on his website, the operator of Oink’s Pink Palace (which was a BitTorrent-oriented music sharing website running a torrent tracker) was charged

R. v Rock and Overton (2010) T20087573

Gloucester Crown Court
The operator of a website known as TV Links (which facilitated copyright-infringing activities by hosting links to 3rd party streaming websites) was charged with conspiracy to defraud. The judge initially

L’Oreal v eBay [2009] EWHC 1094 (Ch)

Operator of an auction website was not found liable in joint tort liability for failing to prevent trademark-infringing actions of its users, who sold counterfeit goods bearing the claimant’s trademark

Bunt v Tilley [2006] EWHC 407 (QB)

This case saw three British ISPs (AOL, Tiscali and BT) being placed at the crosshair of publisher’s liability for defamatory posts shared through the Usenet newsgroups, due to the fact

Argentine Civil Code

Articles 1109 and 1113 as modified by Law 17.711 of July 1, 1968
Although Argentina does not have any specific legislation regarding Internet Service Providers’ (ISP) liability, Articles 1.109 and 1.113 of the Argentine Civil Code are used as references for court cases

Intellectual Property Law N. 11.723

A number of the judicial decisions regarding intermediary responsibility are based on Intellectual Property Law 11.723. The following articles have been repetedly applied in decisions dealing with intermediary liability: (

Legislative Proposal, 8070-D-2012

Intermediary Services on the Internet. Providers’ Responsibility Guidelines
Proposing that ISPs should not be liable for the transmitted information, unless they originally transmitted it or modified it. Defines caching, hosting and discusses the dissemination of preventive policies to

Legislative Proposal, 2668-D-2012

ISPs Responsibility Guideline
Article 1.1 defines Internet Service Providers (ISP) as the technological intermediaries who allow access, connection and interconnection to networks and data on the Internet. This also includes those spaces that

Sujarchuk Ariel Bernardo c/Warley Jorge Alberto

Corte Suprema [Supreme Court], Civil, S.755, L.XLVI
The civil court charged a journalist for describing Ariel Bernardo Sujarchuk, sub secretary at the University of Buenos Aires, as sinister in a published blog. The Supreme Court applied a

S. M., M. S. c/ Yahoo de Argentina SRL y Otro s/ daños y perjuicios

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil. Expte. Nº 89.007/2006; Cita Online: AR/JUR/XXXXX/2013.
This case is one among numerous civil lawsuits brought against the search engines Google and Yahoo! by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy

“P., L. y otros"

Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal [National Court of Criminal Appeals, Buenos Aires capital District], Criminal
Confirmed the previous decision regarding a criminal lawsuit against 10 YouTube users accused of publishing a movie on the platform and infringing copyright law, in particular Article 71 of Law

María Belén c/ Google Inc. y Otro s/ Daños y Perjuicios, Expte. Nº 99.613/06

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, Cita Online: AR/JUR/21886/2013
This case is one among other civil lawsuits brought against the search engines Google and Yahoo! by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy

C. E. M. Y OTRO v. Mercado Libre S. A. S

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil /DAÑOS Y PERJUICIOS, Expte. Nº 36440/2010 Cita Online: AA83B9
Individuals sued Mercado Libre after having bought counterfeit tickets on their website. Mercado Libre functions as an online platform which provides a space for sellers to advertise and sell their

Virginia Da Cunha v. Yahoo de Argentina S.R.L. and Google.

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, Da Cunha, Expte. Nº 99.620/2006; Cita Online: AR/JUR/40066/2010, August 10, 2010
In Argentina, controversies against the search engines Google and Yahoo! arose in civil lawsuits brought by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy, or

Bluvol, Esteban Carlos c / Google Inc. y otros s/ daños y perjuicios

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil. Exp. N° 59.532/2009, Cita Online: AR/JUR/55851/2009
In the Bluvol case, the plaintiff came to know of a blog on Blogspot, which he had not created, but was posted under his name. This blog was easily accessible

Delegación de Asociaciones Israelitas Argentinas v. Google Inc

Juzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court], Civil, Expte. n° 34023/11 Cita Online La Ley AR/JUR/16489/2011
The Argentine Delegation of Israeli Associations (DAIA) requested that Google removed the links to many websites presenting ostensibly anti-Semitic and discriminatory content. DAIA filed a class action and the judge

Google Brazil, Special Appeal No. 1323754/RJ

Superior Court of Justice, Third Panel,
Decision held that the ISP must act expeditiously upon user notification in order to avoid being held jointly liable for offensive/illegal content. The decision suggests that, once communicated by a

Aliandra v. Orkut, ARE 660861

At the Supremo Tribunal Federal and Minas Gerais State Court of Appeals], Civil.
( 1 ) The Plaintiff, a teacher called Aliandra, was informed by students that Orkut hosted an allegedly defamatory "community" (a discussion forum created by users) called “I hate Aliandra".

Law No. 20.435,

Amending the Intellectual Property Law
Together with new copyright exceptions and limitations and the new rules for collecting societies’ tariff procedures, this amendement establishes a regime of limitations on liability for information service providers, as

Suazo vs Reclamos.cl

Supreme Court
The plaintiff sought relief from the administrator of a website ( www.reclamos.cl ) where people can leave anonymous public messages with complaints against companies and services. The plaintiff, the representative

Fuentes vs Entel II

Court of Appeals of Concepción
Plaintiff sought monetary relief from both the internet service provider (Entel) as well as the parent of the person that posted a defamatory content (see below Entel I). The Court

Fuentes vs Entel I

Court of Appeals of Concepción
Stating that liability for defamatory content - a false offering of sexual services by the minor daughter of plaintiff - may be exclusively casted upon the provider of the content,

Electronic Transactions Act

§34 of the Electronic Transactions Act deals with the ‘Liability of Intermediaries’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor information

Civil Code, Law No. 43 of 1976

( 1 ) In the absence of a provision in the Copyright Law, secondary liability is dealt with general tort law principles of joint liability under the Jordanian civil legal

Regulation No. RG-26680

Regulation No. RG-26680, October 24, 2007, Regulation on the Procedures and Principles for Granting Operating Certificate to Access Providers and Hosting Providers by the Telecommunication Authority (English Version)

Copyright Act, RSC 1985, c C-42

( 1 ) The most pertinent parts of this Act for intermediaries are sections 2.4(1)(b), 27 and 29. Section 2.4(1)(b), known as the “ Common Carrier Exemption ”, states that

General Resources - Argentina

Asociación por los Derechos Civiles (ADC), ‘Challenges Facing Freedom of Expression: Intermediary Liability in Argentine Case Law’ Freedom House, ‘Freedom on the net 2011 A global assessment of Internet and

General Resources - Chile

Claudio Ruiz Gallardo and Juan Carlos Lara Gálvez, Liability of Internet Service Providers (ISPs) and the exercise of freedom of expression in Latin America (2011) Matías Hercovich Montalba, Responsabilidad de

Andrés Izquierdo, Fundación Karisma, “Intellectual Property Reform in Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens on Internet Service Providers that Unnecessarily Restrict Access to Information and Freedom of Expression of the People of Colombia (Glushko-Samuelson Intellectual Property Clinic, PIJIP Research Paper No. 2013-03, 2013)

Glushko-Samuelson Intellectual Property Clinic, in collaboration with Andrés Izquierdo and Fundación Karisma. 2013.Intellectual Property Reform in Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens on Internet Service

General Resources - Peru

Comisión de Derechos de Autor del Instituto Nacional de Defensa de la Competencia y la Propiedad Intelectual Peruvian Copyright Administrative Authority at the National Institute for the Defense of Competition

General Resources - Venezuela

Comisión Nacional de Telecomunicaciones de Venezuela (Conatel) Venezuelan National Commission of Telecommunications, http://www.conatel.gob.ve Freedom House, Freedom on the Net, Venezuela, http://www.freedomhouse.org/report/freedom-net/2013/venezuela#.U9BdWkCTErM

Law No. 2/2011, on a Sustainable Economy

Law instituting an administrative body - the Second Section of the Copyright Commission - in charge of issuing orders against information society services hosting copyright infringing materials (Article 43, introducing

Legislative Proposal, 5771-D-2016

Intermediary Services on the Internet. Providers’ Responsibility Guidelines
Defines “intermediaries” as the ones that carry out or facilitate transactions between third parties on the Internet, whether they offer access to, hosting, transmission, or index content, products or services

Legislative Proposal, 942-S-2016

Intermediary Services on the Internet. Providers’ Responsibility Guidelines
This legislation would codify responsibility of intermediaries for content posted by users. It defines ISPs; access, interconnection, transmission and data addressing providers; automatic storage or cache services providers; hosting providers;

Argentine Civil and Commercial Code,

Into force on August 1, 2015 - articles 53, 1721 and 1724
The new Argentine Civil and Commercial Code does not have any specific legislation regarding Internet Service Providers ’ (ISP) liability. Article 1.109 of the revoked Argentine Civil Code is still

Sagües Guillermo Ernesto y otro c/ Google Inc. y otro s/ daños y perjuicios

Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, Sala III [National Civil and Commercial Court of Appeals, Federal District], Cita Online: MJ-JU-M-95026-AR
Dr. Sagües, President of the San Isidro Bar Association, sued Google for damages and sought a preliminary injunction for the removal of two allegedly defamatory blogs. A preliminary injunction was

Recommendation CM/Rec(2018)2 - Council of Europe

Recommendation of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries
The recommendation is divided in two items aimed at the protection and promotion of human rights and fundamental freedoms in the digital environment. While the first item deals with the

Kamlesh Vaswani vs. Union of India

Case pending decision
In 2013, lawyer Kamlesh Vaswani filed a petition before the Supreme Court of India challenging Sections 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology

In Re: Prajwala

Case pending decision
In 2015, an NGO named Prajwala wrote a letter to the Supreme Court raising concerns about videos depicting sexual violence being distributed on the internet. The letter sought to bring

Zakharov v. Russia (European Court of Human Rights)

The ECHR reviewed the Russian regulatory framework for mass surveillance on telecom networks (aka "SORM") and ruled that it is incompatible with Article 8 ("Right to respect for private life and correspondence") of the European Convention on Human Rights.

Cybercrimes and cybersecurity bill

Bill introduced in Parliament, December 9, 2016
According to Article 16: Any person who unlawfully makes available, broadcasts or distributes, by means of a computer system, a data message to a specific person, group of persons or

Film and Publications Act

Film and Publications Act, Law n. 65/1996
According to Article 2: The object of this Act shall be to regulate the distribution of certain publications and the exhibition and distribution of certain films, in the main by

Online Regulation Policy

Policy designed to “bring about a comprehensive and fundamental transformation for online content regulation in the country”, “ensure that children are protected from exposure to disturbing and harmful content” and

FAPL v BT & others [2017] EWHC 480 (Ch)

This is a unique s.97A of the CDPA 1988 blocking injunction case, aimed at tackling copyright-infringing, live streaming of Premier League matches. The successfully obtained order (largely agreed between the

Topics

Copyright

As the Internet facilitates nearly costless and limitless reproduction of copyrighted works, policy makers and courts have struggled to find the right balance between competing goals. These include: 1) mitigating

Right to Be Forgotten

The expression "right to be forgotten" has been used to label a broad range of very different legal issues, from privacy claims requesting broadcasters and newspapers to remove news from