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Monitoring Obligations

December 15, 2017

Extremist and violent content, repeated copyright infringement, and child abuse images are among the threats that have led courts and policymakers to push for intermediaries to proactively monitor and remove online information. Monitoring obligations can arise from explicit statutory requirements (as in the proposed EU Copyright Directive). They can also arise when courts impose strict liability for user-generated content, effectively meaning that intermediaries must proactively review and suppress user expression in order to avoid liability (this is the issue in key European Court of Human Rights rulings, discussed below).

Monitoring obligations drastically tilt the balance of the intermediary liability rules toward more restriction of speech, may hinder innovation and competition by increasing the costs of operating an online platform, and may exacerbate the broadly discussed problem of over-removal of lawful content from the Internet.

Pressures to monitor have been created both by courts and by recent policy proposals. Courts in Germany (see the cases of Gema v. RapidShare and Atari Europe v. RapidShare), for example, have ordered intermediaries to monitor for recurrence of particular copyrighted content. Law enforcement agencies have proposed monitoring obligations to avoid pro-terrorist and hate speech content, and copyright owners have proposed them to fight piracy online (see the U.S. Copyright Office - Section 512 Study: Notice and Request for Public Comment and the European Commission Proposal for a Directive on Copyright in the Digital Single Market).

Some of the proponents of monitoring obligations argue that existing technology already enables platforms to detect infringing material online. Examples of such technology include YouTube's rights management tool (Content ID) - used by creators to control the use of their copyrighted material on the platform - or hashing technology such as PhotoDNA - used by major companies to prevent the uploading of child abuse images. Proponents of monitoring obligations propose that the use these technologies should be extended to other (if not all) kinds of content. Opponents point out that these technologies will inevitably silence lawful speech because they are not capable of recognizing context -- such as parody in copyright cases or news reporting in terrorism-related cases.

In the European Court of Human Rights (ECHR), the cases Delfi v. Estonia and MTE v. Hungary explored tensions between intermediary monitoring requirements and Internet users’ rights to seek and impart information. The two cases addressed the liability of news portals for comments made by their users, reaching different results. In Delfi v. Estonia the upper chamber of the ECHR decided that the news portal Delfi could be held liable for hate speech (threats and anti-semitic content) posted to their comments section. Although the court emphasized that a different result could be reached if the defendant were not a news provider, the decision may push both news portals and other hosts to entirely shut their comments section, bear the costs of monitoring the content posted, or face the risk of liability for their users' wrongdoings. In MTE v. Hungary, the lower chamber of the Court went in a different direction. It determined that the defamatory speech at issue in the case was not dangerous enough to justify a monitoring obligation, given the risks it would pose to users' freedom of expression. High courts in Argentina and India have also reached key rulings on the topic. Both rejected monitoring obligations on grounds of Internet users' speech and information rights -- though pending cases in India mean the legal landscape for monitoring there may continue to evolve.

Expanding pressures for intermediaries to assume monitoring obligations have been heavily criticized by public interest groups such as EFF and EDRi. Their concerns include both the immediate impact on expression rights and the apparent move towards privatized enforcement without transparency and the appropriate safeguards for speakers and the general public.

Below, you can find entries that concern monitoring or filtering obligations for Online Service Providers in the WILMap database. Please let us know if you identify any important development that should be included.

Other Resources

For more information on monitoring obligations, see:

- New Intermediary Liability Cases From the European Court of Human Rights: What Will They Mean In The Real World?, by Daphne Keller.

- From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe, by Giancarlo Frosio.

- The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform, by Martin SenftlebenChristina AngelopoulosGiancarlo FrosioValentina MosconMiquel Peguera, and Ole Andreas Rognstad.

Entries

Featured

Court Decision

M. Belen Rodriguez c/Google y Otro s/ daños y perjuicios,

Corte Suprema [Supreme Court], Civil, R.522.XLIX.
This landmark case addressed the liability of search engines for linking in search results to third-party content that violates fundamental rights or infringes copyright. Because Argentina had no intermediary liability legislation at the time, the Supreme Court reviewed domestic and international law, and reasoned from tort principles and constitutional or human rights law. Its decision was largely favorable to search engines. The Court ( 1 ) repudiated a strict liability standard on the basis of the threat it would pose to free expression rights; ( 2 ) held that search engines could not be liable for unlawful content upon notification unless a public authority had adjudicated the material as unlawful, with exceptions for cases of "gross and manifest harm"; ( 3 ) rejected any filtering obligation to prevent infringing...
Court Decision

European Court of Justice, L’Oréal SA and Others v. eBay International AG and Others, C-324/09

Considering the use of keywords as a trigger for contributory liability of an hosting provider that operates an online marketplace. The ECJ found that an hosting provider cannot benefit from the E-Commerce Directive safe harbours ( 1 ) if it has played an active role in relation to the sale activities of the direct infringer, or ( 2 ) if it has constructive knowledge of unlawful sales carried out throughout its services. ( 3 ) The Court clarified that "awareness" of illegal content can in particular be obtained by a notice that is "sufficiently detailed and adequately substantiated". A hosting service provider may thus have to act (by removing or disabling access to content) following the receipt of a notice. A notice may concern any type of illegal content. ( 4 ) The ECJ interpreted Article 11 of the Enforcement...
International Agreement

Directive 2000/31/EC on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market

( 1 ) Articles from 12 to 15 provides mere conduit, caching, and hosting exemptions for intermediaries, together with the exclusion of a general obligation on access, hosting and caching providers, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. ( 2 ) In particular, Article 14(1) provides that Member States shall ensure that hosting providers are not liable for the information stored at the request of the recipient, on condition that: ( a ) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or ( b ) the provider, upon obtaining such knowledge or awareness,...
Court Decision

European Court of Justice, Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), C-70/10, November 24, 2011

( 1 ) The ECJ had to decide whether a Belgian collective rights managment organization (SABAM) could require an internet service provider, namely Scarlet and Tiscali, to install a filtering system with a view to preventing the illegal downloading of files. ( 2 ) The ECJ ruled that EU law must must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering (i) all electronic communications passing via its services, in particular those involving the use of peer-to-peer software; (ii) which applies indiscriminately to all its customers; (iii) as a preventive measure; (iv) exclusively at its expense; and (v) for an unlimited period, (vi) which is capable of identifying on that provider’s network the movement of electronic files containing a...

Africa

Proposed Law

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 the 5 general public with the intention to incite— (a) the causing of any damage to any property belonging to; or (b) violence against, a person or a group of persons, is guilty of an offence. According to Article 17: ny person who unlawfully and intentionally makes available, broadcasts or distributes, by means of a computer system, a data message which is harmful, is guilty of an offence. (2) For purposes of subsection (1), a data message is harmful when— (a) it threatens a person with— 15 (i) damage to any property belonging to, or violence against, that person; or (ii) damage to any property belonging to, or violence against, any...
Regulation

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 “ensure that classification and compliance monitoring focuses on media content, rather than on platforms or delivery technologies". It establishes a special regime for the classification of user-generated content which can be activated on its own accord or on the basis of complaints by third parties. To enforce the regime, the Policy establishes that the Film and Publications Board may approach media platforms including internet service providers to take down existing content, request content classification or access restriction, order a particular classification or institute criminal charges. The Policy...
Legislation

Law No. 03-03 regarding anti-terrorism

( 1 ) The law provides authorities with legal powers to filter and delete content that is deemed to “disrupt public order by intimidation, force, violence, fear or terror.” ( 2 ) Article 218-5 assigns legal liability to the author and anybody who in any way helps the author to disseminate the apology for acts of terrorism, a provision which would include site owners and ISPs. ( 3 ) Intermediaries must block or delete infringing content when made aware of it or upon receipt of a court order.
Legislation

Act No. 65/1996 Film and Publications Act

Establishing the obligation of IAPs, subject to criminal sanctions (section 27 (A) (4)), to: ( a ) register with the Board in the manner prescribed by regulations made under this Act; ( b ) take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography (section 27 (A) (1)); ( c ) upon discovery of the use of their services to host or distribute child pornographic material, report to the police the presence thereof, as well as the particulars of the person maintaining or hosting or distributing or in any manner contributing to such Internet address; and ( c1 ) take all reasonable steps to preserve such evidence for purposes of investigation and prosecution by the relevant authorities (section 27 (A) (2).
Legislation

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 means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had to the fundamental rights enshrined in the Constitution of the Republic. According to Article 25: Any person who knowingly- (a) distributes or advertises for distribution a publication classified as XX in terms of a decision of the Board which has been published in the Gazette; (b) distributes a publication classified as X18 in terms of such a decision so published; (c) distributes a publication, classified as R18 or F18 in terms of such a decision so published, in conflict with a condition referred to in section 17(1)(c) or (d),...

Asia

Other

Forbidden Feeds: Government Controls on Social Media in China

Detailed 2018 review of Chinese developments including intermediary liability laws
This well-researched and annotated report includes thorough discussion of recent developments affecting online speech via social media in China. A section on applicable law discusses the consolidation of agencies exercising authority over online speech and the passage of several laws or regulations increasing the responsibility of Internet intermediaries. In addition to the 2017 Cybersecurity law, these include: Chinese Internet News Information Service Management Regulations, effectively prohibiting news and political reporting outside of official channels. Internet Forum Community Service Management Regulations, requiring platforms to verify real identity of users, Internet Thread Comments Service Management Regulations, requiring platforms to establish "credit rating" systems for users, and ultimately ban poorly...
Legal Opinion/Petition

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 the Court’s attention to the existence of such videos, and their rampant circulation on online platforms. Based on the contents of the letter, a suo moto petition was registered, with Google, Facebook, WhatsApp, Yahoo and Microsoft impleaded as parties. The Court directed that a committee be constituted to advise the Court “on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation.” One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking with the use of keywords and hashes. The orders of the Court...
Court Decision

Sabu Mathew George vs. Union of India

This is a 2008 case where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. Section 22 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is the operative provision. In this case, the 'doctrine of auto-block' was an important consideration. In its judgment dated 13th December, 2017, the Court had listed roughly 40 search terms, imposing the aforementioned standard on the respondents, stating that any attempt at looking up the banned search terms would be ‘auto-blocked’. This ruling raised concerns about intermediary liability and free speech. The 'doctrine of auto-block' could block legitimate information relating to reproductive rights and sexual health. To ensure compliance, the Court had also ordered...
Regulation

Provisions for the Administration of Internet News Information Service 2017

Revision of the Provisions for the Administration of Internet News Information Services 2005
Chapter I: General Provisions Article 1: In order to strengthen Internet information content management and stimulate the healthy and orderly development of Internet news information services, on the basis of the “ Cybersecurity Law of the People’s Republic of China ”, the “ Administrative Measures of Internet Information Services ”, and the “ Notice of the State Council on Charging the Cyberspace Administration of China with the Content Management of Information on the Internet ”, these Regulations are formulated. Article 2: These Regulations apply to the provision of Internet news information services within the territory of the People’s Republic of China News information as mentioned in these Regulations includes reporting and comments on politics, economic, military matters, foreign affairs and other such social...
Paper/Research

Turkey Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Azerbaijan Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Court Decision

District Court of Tel-Aviv, Charlton Ltd. v. Bezeq International & Co., 2014 (PENDING) (official name of case not yet available)

In early April 2014, Charlton Ltd. filed a lawsuit in the Tel-Aviv district court against three major Israeli ISPs. Charlton is arguing that the ISPs have contributory liability with regard to streaming of sports events in which Charlton has copyrights. Charlton argues that the ISPs have the ability to easily monitor and prevent the infringement but choose not to act in that regard. Charlton is asking the court to instruct the ISPs to take down dozens of websites and reveal the identities of many users.
Legislation

Copyright Act, last amended by Act No. 12137

( 1 ) Article 102 provides safe harbor for intermediaries from third party copyright infringement. The provision was amended twice in 2011 first to reflect the Korea-EU FTA and then the Korea-US FTA. EU Directive 2000/31/EC Section 4 “Liability of intermediary service providers” was almost exactly reproduced verbatim in the Intellectual Property chapter of the Korea-EU FTA, and the intellectual property chapter of the Korea-US FTA adopted the structure of DMCA safe harbor provisions. Therefore, it is no coincidence that the structure of Article 102 is very similar to that of EU Directive 2000/31/EC and DMCA. Paragraph ( 1 ) sets out specific conditions necessary for safe harbor for different types of Online Service Providers (OSPs). It classifies OSPs into four classes: mere conduits (subparagraph 1), caching...
Institution (Description)

Regulatory Entity: Supreme Council of Cyberspace

The Supreme Council of Cyberspace (SCC) was established by the order of Iranian Supreme Leader Ayatollah Ali Khamenei. As stated in the SCC's charter , the body is tasked with writing the policies that govern the usage of internet exchange points (IXPs) and content for filtering.
Court Decision

Supreme Court Decision 2011Do1435

( 1 ) In this decision, the Supreme Court clarified that the safe harbor under Article 102 of the Copyright Act (before it was amended by Act no. 8852 on 29 February 2008) also applies to criminal liabilities . ( 2 ) The Supreme Court further explained the meaning of being “ technically impossible ” under Article 102(2). In this case, the defendants implemented filtering measures utilizing hash values and banned keyword lists. The Supreme Court found that those measures were not state of the art measures available and didn’t even work properly, and therefore the defendants cannot resort to the safe harbor under Article 102(2).
Court Decision

Oriental Press Group Ltd. v. Fevaworks Solutions Ltd, HKCFA 47

Court of Final Appeals
Holding online intermediaries of discussion forums as secondary publishers with liabilities imposed from outset, who also have the duties to monitor and take active actions when noticed of defamatory activities on their platform. Defendants were administrators, providers and managers of a website that hosted one of most popular Internet discussion forums in Hong Kong, known as the Golden Forum. Plaintiffs were publishers of the Oriental Press Groups, one of the most popular local newspapers. Three entries were posted in the defendants’ forum accusing plaintiffs dealing with money laundering, drug trafficking and bribery, etc. Defendants removed two entries with due notice but the last one was removed eight months after being informed. Lower court held the forum for not having duly removed this entry without reasonable...
Court Decision

Supreme Court Decision 2010Ma817

( 1 ) This is an important decision regarding trade of counterfeit goods on online shopping malls, so called open-markets, where the service providers do not sell goods but intermediate between sellers and customers and receive commissions. The plaintiff was Adidas and the defendant was eBay Korea. Adidas filed an injunction against eBay for the sale of counterfeit goods on Gmarket and Auction, the largest and top grossing open-market in Korea. Adidas alleged that eBay has a duty under Article 44(2) of ICNA (note: This provision declaratively states the service provider’s duty to make efforts to reduce rights-violating material on its services, and is not to be confused with Article 44-2 that imposes on-demand takedown obligations.) to prevent circulation of counterfeits and demanded eBay to take several measures...
Legislation

Computer Crimes Law, June 2009

( 1 ) Article 21 of Iran's Computer Crimes Law (CCL) imposes liability on Internet Service Providers (ISPs) that fail to filter internet content that “generates crime.” Penalties for the violating the crime depend on the ISP's intention and number of prior offenses, and include fines and liquidation of the ISP. ( 2 ) The legality of online content is determined a body created in Article 22 of the CCL, now known as the Committee for Determining Instances of Criminal Web Content . Article 23 charges ISPs with implementing the orders of the Committee and imposes a reporting requirement on ISPs to inform the Committee upon encountering illegal content. ( 3 ) Additionally, Articles 15 and 17 do not specifically reference ISP liability, but could be referenced in cases against them. Article 15 outlaws facilitating others’...
Legislation

Copyright Act, Parliamentary Legislation, Chapter 63, Revised Edition 2006, January 31, 2006 (originally Apr. 19, 1987) (An Act relating to copyright and matters related thereto)

In 1999, Singapore made its first amendments to the Copyright Act to introduce various safe harbor defenses for Internet intermediaries as network service providers. Arising from its obligations under the U.S. Singapore Free Trade Agreement, Singapore further revised in 2004 the safe harbor defenses in the Copyright Act for network service providers. ( 1 ) Section 193A of the Copyright Act states that the safe harbor defenses are to apply to “network service providers”, which includes ISPs as intermediaries providing services and connections for data transmission or routing, as well as intermediaries who provide or operate facilities for online services or network access. It would seem that “network service providers” are broadly defined so that most Internet intermediaries would qualify for the safe harbor defenses....
Court Decision

Judicial Interpretation No. 20 [2012] of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks, December 17, 2012 [English Version]

This Judicial Interpretation provides the detailed rules on deciding Internet intermediary’s liability for copyright infringement. ( 1 ) First, whether an Internet intermediary ought to be liable mainly depends whether it is at fault for the copyright infringement in question. In light of Article 8 , the fault means Internet intermediaries actually know or should know the copyright infringement concerned. ( 2 ) Second, the Judicial Interpretation ( Article 8 ) clarifies that Internet intermediaries have no obligation to actively monitor their services, and if they have already taken reasonable and effective technical measures but still could not know the infringement, they should not be held as being at fault. ( 3 ) Third, regarding what constitutes “ should know ”, the Judicial Interpretation ( Article 9, 10 and 12 )...
Court Decision

Beijing Higher People’s Court [北京市高级人民法院], Zhong Qin Wen v. Baidu [中青文v.百度], 2014 Gao Min Zhong Zi No. 2045, [(2014)高民终字第2045号], 2014

( 1 ) In this case, the plaintiff Zhong Qin Wen found some of its copyrighted works made available on the platform BaiduWenku and sued Baidu for copyright infringement. Baidu claimed that BaiduWenku was just a platform for Internet users to upload and share materials, and it had fulfill reasonable duty of care to prevent infringement on its platform, so it should not be held liable. ( 2 ) The Beijing First Intermediate People’s Court held that Baidu was incapable of monitoring all uploads and did not directly benefit from infringement, but should know the infringing uploads in question. According to the decision, the defendant Baidu kept the viewing and downloading data of each uploaded work. By using current technologies, it was reasonable for Baidu to execute a monitoring mechanism in light of which, once an uploaded...
Legislation

Republic Act No. 9775 (a.k.a. the Anti-Child Pornography Act of 2009), November 17, 2009

( 1 ) On Internet Content Hosts ( i ) Under the law, an internet content host is defined as any person who hosts or who proposes to host internet content in the Philippines Section 3(f) . Each one is bound to observe and perform certain specific duties, thus: “Duties of an Internet Content Host. – An internet content host shall: ( a ) Not host any form of child pornography on its internet address; ( b ) Within seven (7) days, report the presence of any form of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such internet address, to the proper authorities; and ( c ) Preserve such evidence for purposes of investigation and prosecution by relevant authorities. An internet content host shall, upon the request of proper authorities, furnish the...
International Agreement

Trans-Pacific Partnership

( 1 ) Malaysia is one of the negotiating partners of the Trans-Pacific Partnership (TPP) Agreement. The intellectual property chapter of one of the drafts was published by WikiLeaks in November 2013 . ( 2 ) It is clear that a notice and take down procedure is on the wish list of some countries. Article QQ.I.1 Malaysia, conform its current legislation, proposes that “Each Party shall limit the liability of, or the availability of remedies against, internet service providers.” ( 3 ) Malaysia opposes Canada’s proposal that “Eligibility for the limitations in the previous paragraph may not be conditioned on the internet service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.”
Policy Document
Proposed Law

Internet Filtering Plan, 2009

Malaysia considered the establishment of an internet filter similar to the Green Dam project in China. Niluksi Koswanage, Malaysia Examines Internet Filter, Tougher Controls , Reuters, Aug. 6, 2009. Malaysia did not do it since it would hurt freedom and foreign direct investments. Razak Ahmad and Royce Cheah, Malaysia Backs off Internet Filter Plan , Reuters, Aug. 7, 2009. The Malaysian Communications and Multimedia Commission, which issued the tender, said it was a study on Internet usage so as to boost Malaysian content on the Internet and that reports of a filter were “sensationalized”. But a copy of the tender documents, seen by Reuters, appeared to contradict that statement. Niluksi Koswanage and Razak Ahmad, Malaysia to Cancel Internet Filter , Reuters, Aug. 12, 2009.
Legislation

Telecommunications Business Act, last amended Act No. 12761, October 15, 2014 (English Version)

English Version ( 1 ) According to Article 27(2)6 , a value-added telecommunications service provider of special type (the special types of OSPs such as P2P or web-hard service providers under Article 104 of the Copyright Act) which has been imposed the fine under Article 142(1) of the Copyright Act for more than three times may have its registration cancelled or its business suspended. “Value-added telecommunication service providers” is the term of art that describes all online hosts of applications and contents. ( 2 ) The amendment by Act no. 12761 on 15 October 2014, which came into force on April 16, 2015, newly included Article 22-3 which compels those special types OSPs to adopt technical measures prescribed by Presidential Decree to prevent circulation of obscene materials. Those OSPs in violation of Article 22...
Legislation

Act on the Protection of Children and Juveniles Against Sexual Abuse, last amended by Act No. 11690, March 23, 2013 (English Version)

( 1 ) Article 2 subparagraph 1 defines “children or juveniles” as “persons under 19 years of age” and “child or juvenile pornography” as “depiction of children or juveniles, or persons or representations that can be perceived evidently as children or juveniles” doing sexual act. ( 2 ) Article 17 ( Obligations of Online Service Providers ) imposes obligations regarding child pornography on OSPs as follows: Any online service provider who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in the information and communications network managed by himself/herself or who fails to immediately delete the detected pornography and take technical measures to prevent or block transmission thereof, shall be punished by imprisonment with prison labor for not more than three years or by a...
Court Decision

Supreme Court en banc Decision 2008Da53812, April 16, 2009 (English Version)

( English Version ) ( 1 ) This is a much criticized Supreme Court decision on intermediary liability for defamatory content . There were two contradictory Supreme Court decisions (2001Da36801 and 2002Da72194, see below) prior to this en banc decision on the same issue. ( 2 ) The Supreme Court held web portal sites Naver, Daum, SK Communications, and Yahoo Korea liable for the defamation of the plaintiff whom the user postings there accused of deserting a girlfriend upon the second pregnancy after he talked her into aborting the first where the girlfriend then committed a suicide. The court upheld judgments of 10 million won, 7 million won, 8 million won, and 5 million won, respectively, against these services. ( 3 ) Specifically, the court held that, barring special circumstances, ( a ) the intermediary shall be liable...

Central America

Proposed Law

Electronic Transactions Bill, 2013

This Bill is meant to presumably replace the 2008 Act. Part VIII ( Clauses 33-35 ) of the Bill deals with Intermediary Liability, and contains more expansive provisions than the current Act. Such provisions include an affirmation of the non-requirement to actively monitor electronic records, a procedure to deal with electronic records which give rise to liability, and the approval of a code of conduct or standard by the Minister. It is also anticipated that in the near future, the government will seek to establish Regulations pursuant to the parent legislation cited above, which will include provisions on the conduct of intermediaries.
Legislation

Electronic Transactions Act, No. 6 of 2011

Part VII (§§50-52) of the Electronic Transactions Act dealt with the issue of ‘Intermediaries and Telecommunications Service Providers’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic records and transmission. When knowledge arises that information in a data message or electronic message may result in liability, intermediaries and telecoms service providers are required to remove the information from their systems, and in the case of criminal liability, notify the appropriate law enforcement authority. The legislation also allows for the government to establish subsidiary regulations for codes of conduct and standards to which intermediaries and telecommunications service providers must comply. However, it is understood that no such...
Legislation

Electronic Transactions Act, No. 7 of 2009

§§30-31 of the Electronic Transactions Act deals with ‘Liability of Intermediaries or E-Commerce Service Providers’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic records. §31(3) gives the Minister the power (when notified by an intermediary that an electronic record may give rise to liability), to direct the intermediary to ( a ) remove electronic questions in question, ( b ) cease provision of services to persons, or ( c ) cease to provide services in relation to the specific electronic record in question. The legislation also allows for the government to establish subsidiary regulations to which intermediaries must comply. However, it is understood that no such regulations have been yet established.
Legislation

Electronic Transactions Act, No. 15

§§25 of the Electronic Transactions Act deals with ‘Liability of Intermediaries’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic documents. Intermediaries are required to remove documents and cease providing services in relation to documents, where knowledge of liability arises.
Legislation

Electronic Transactions Act, 2007

Part 5 of the Electronic Transactions Act (§43) deals with Intermediaries and Internet Service Providers. The provision is basic and employs a ‘mere conduit’ approach. There is no affirmation of a non-requirement to monitor transmissions, and there is no elaboration on the procedure to be followed when knowledge of potential liability arises. §43 does however allude to procedures required by Regulations, but no such Regulations are known to have yet been passed.
Legislation

Electronic Transactions Act, 2007

PART VII of the Electronic Transactions Act ( §§51-59 ) deals with ‘Liability of Service Providers’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require service providers to actively monitor data that is transmitted or stored. However, §53 provides that the service providers only enjoy protection from liability if they are a member of the representative industry body recognized by the Minister, and have adopted and adequately implemented that body’s code of conduct. As such, the Code of Conduct is hence set by the industry, rather the government. It is not know whether such an industry body has yet been recognized, or if such a code of conduct has been established. Furthermore, a service provider must have a designated agent to deal with notifications of infringement, in order to...
Legislation

Electronic Transactions Act, No. 8 of 2006

Part VIII ( §§35-41 ) of the Electronic Transactions Act deals with the issue of ‘Liability of Intermediaries and Service Providers’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic records and transmissions. The legislation also provides for a takedown notification procedure, where aggrieved persons can issue a notification of ‘unlawful activity’ to the intermediary. Intermediaries are also not liable for wrongful takedowns in response to notifications. The legislation also allows for the government to establish subsidiary regulations for a Code of Practice to which intermediaries must comply. However, it is understood that no such Code has been yet established.
Legislation

Electronic Communications and Transactions Act (Chapter 337A)

Part III ( §§19 -21 ) of the Electronic Communications and Transactions Act deals with ‘Intermediaries and E-Commerce Service Providers’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic records and transmissions. §20(3) gives the Minister the power (when notified by an intermediary that an electronic communication may give rise to liability), to direct the intermediary to undertake certain actions. Such an action can include directions to (a) remove the electronic communication in question, or (b) cease provision of services to persons. The legislation also allows for the government to establish subsidiary regulations for a Code of conduct or standards to which intermediaries must comply. However, it is understood that no such...
Legislation

Electronic Transactions Act (Chapter 308B)

Part VII ( §§23-24 ) of the Electronic Transactions Act deals with the issue of ‘Intermediaries’. The statutory provisions generally employ a ‘mere conduit’ approach, and do not require intermediaries to actively monitor electronic records and transmissions. §24(2) gives the Minister the power (when notified by an intermediary that an electronic record may give rise to liability), to direct the intermediary to ( a ) remove electronic questions in question, ( b ) cease provision of services to persons, or ( c ) cease to provide services in relation to the specific electronic record in question.

Europe

Court Decision

Belgian ISPs agree to block 450 ‘pirate’ domains

A Belgian solution to the problem of counterfeiting
Thee three main Belgian ISPs Proximus, Telenet and VOO are joining with right holders and are now blocking 33 websites and 450 domains on copyright grounds. People who are now trying to access these sites will see an ‘online fair play’ message from the Belgian Entertainment Association (BEA). After a year-long legal dispute, the film and music industry and the main internet service providers have decided, on the basis of a joint request, to go to the Brussels French Commercial Court. This case was held in March 2018. The European legislator has set up a mechanism that allows the national judge to issue injunctions to order suppliers to block access to the websites. The BEA and Internet service providers have agreed on a list of 33 websites and 450 domain names that they believe are guilty of facilitating illegal...
Court Decision

Glawischnig v. Facebook (referred to the CJEU)

In this case, the Austrian Supreme Court was faced with the issue to what extent is Facebook obligated to remove defamatory content posted by its users. It raises questions both about global removal and about proactive monitoring of user content. The plaintiff, Ms Glawischnig - former leader of the Green Party in Austria, requested that Facebook removes a post with her photo and a comment calling her among others a “lousy traitor”, a “corrupt boor” and her party a “fascist party”. The plaintiff also requested that Facebook removes comments with not exactly verbatim, but similar content. Facebook refused to comply with the request, claiming that as a host provider it is not obligated to remove the content, unless it has been informed of the infringing content and it's unlawfulness is apparent to a legal layman....
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section, Jameda, VI ZR 34/15

( 1 ) The court ruled that a “review portal” can be liable for the accuracy of user-generated ratings on their web-page if they do not verify the review upon request. In the given case, an anonymous Internet user evaluated the plaintiff, a dentist, with the equivalent of a D-. ( 2 ) The court made clear that the provider is only liable if it breaches the observation duties of the Stoererhaftung doctrine. However, a provider is obligated to verify the review if the anonymity of its portal makes it difficult for the person affected to directly address the reviewer. This implies the duty to request medical records or prescriptions. Moreover, the provider has to pass on that part of reviwers' personal information which is not privileged under § 12 TMG to the person affected by the review. See also CIS blog
Paper/Research

Italy Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Lithuania Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Luxembourg Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . [The report for Luxembourg is also available in French on the site.] The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Netherlands Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Poland Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Portugal Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Romania Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Russian Federation Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Serbia Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Slovak Republic Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Slovenia Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Spain Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Sweden Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Switzerland Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . [The report for Switzerland is also available in French on the site.] The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

United Kingdom Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Andorra Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . [The report for Andorra is also available in French on the site.] The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Belgium Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . [The report for Belgium is also available in French on the site.] The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Bulgaria Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Czech Republic Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Estonia Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Finland Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

France Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . [The report for France is also available in French on the site.] The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Georgia Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Germany Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Greece Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Ireland Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Paper/Research

Albania Study on blocking, filtering and take-down of illegal Internet content

(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here . The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
Proposed Law

Draft Law on Amending and Supplementing the Media Act

( 1 ) The Ministry of Culture released a new Draft Law on Amending and Supplementing the Media Act, which states that in order to regulate hate speech – especially on online media platforms – the "editor-in-chief" should be held liable for user-generated content (comments and other audiovisual material). Furthermore, the "editor-in-chief" must implement and publish rules for the selection and inclusion of comments. All comments that are not in line with such rules must be deleted in the shortest time possible. Failing to meet listed obligations constitutes a misdemeanor for which the "editor-in-chief" could be fined between 500 and 5000 euros. ( 2 ) The Information Commissioner has already expressed concerns regarding the purposed amendments by stating that such obligations could seriously impede constitutionally...
Court Decision

Corte d'Appello di Milano [Court of Appeal of Milan], Civil, Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al., 3821/2011

The Court of Appeal reversed an earlier decision (see below). The appelate decision clarified that RTI had the obligation to indicate in a "detailed, precise and specific manner" the videos that Yahoo! had to remove. Additionally, in view of the Court of Appeal, the court of first instance did not have the power to "impose to a hosting provider general orders or, even worse, general monitoring obligations, which are forbidden by Directive 2000/31/EC ." Intermediary liability may arise only if the hosting provider does not act promptly upon a "detailed, precise and specific" notice. Actually, RTI never sent this notice to Yahoo!, therefore the appelate court found in favor of Yahoo! and rejected RTI's claims. See also CIS Blog
Court Decision

TF1 v. DailyMotion, Court of Appeals of Paris

The Paris Court of Appeals handed down a decision awarding €1.3M in damages to the French commercial TV broadcaster TF1 against DailyMotion, which failed its duty of promptly removing infringing materials from its platform. However, the Court stated that DailyMotion enjoys limitation of liability as a hosting provider and is not required to proactively monitor users' infringing activities. See also CIS blog post
Court Decision

Antonio Angelucci and Giampaolo Angelucci v. Wikimedia Foundation Inc. Italia, 70572/09

Tribunale di Roma [Tribunal of Rome], Civil.
( 1 ) Italian politicians Antonio Angelucci and his son claimed that Wikipedia pages related to the Angeluccis contained false statements supposedly harming the family’s reputation. The allegedly defamatory statements referred to bribery scandals involving the Angeluccis. Although, upon notice of Angelucci’s claim, Wikimedia removed the allegedly defamatory information, the Angeluccis sought €20,000,000 in damages from the Wikimedia Foundation. The plaintiffs argued that Wikimedia should be treated like a content provider, rather than hosting, and should be liable under the stricter standard that apply to the Italian press as an online journal. ( 2 ) The Court of Rome rejected plaintiffs' argument and stated that Wikimedia Foundation serves as a hosting provider in managing the online encyclopedia Wikipedia. Therefore,...
Court Decision

Tribunale di Torino [Tribunal of Turin], Civil, IP Specialized Section, Delta TV Programs S.rl. v. YouTube et al

Reversing en banc a previous judgment of the same Tribunal of May 5, 2014 (see below). This time, the Court accepted Delta TV’s request for interim injunction against Google and YouTube for copyright infringement of certain South American soap operas that users had uploaded to YouTube. In this case, Google complied with its notice and take down policy, and the videos were removed as soon as the specific URLs were provided by Delta TV. Nevertheless, the Court agreed with Delta TV’s claims, and ordered Google and YouTube to remove the infringing videos and to prevent further uploads of the same content through the use of its Content ID software (YouTube’s system for automatic detection of uploaded videos that infringe copyright) using as a reference the URLs provided by Delta TV. The Court stressed that these proactive...
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], GEMA v. Rapidshare, I ZR 80/12

( 1 ) This case concerns a dispute between the German copyright collecting society, GEMA, and the Swiss-based file-hosting service, RapidShare. GEMA sued RapidShare in Germany, alleging that over 4,800 copyrighted music files were shared via RapidShare without consent from GEMA or the right holders. ( 2 ) According to the Court, although RapidShare’s business model is not primarily designed for violating rights, it nevertheless provides incentives to third parties to illegally share copyrighted content. It does so by ( i ) generating revenues through premium accounts which enhance massive data downloads, rather than on fees for storage space, as it is common for cloud computing; ( ii ) providing anonymous accounts to its user.; ( iii ) having an abuse rate of 5 to 6 percent - as acknowledged by Rapidshare - that...
Court Decision

Youtube v. SPPF, Paris Court of Appeal

holding Youtube eligible under the hosting safe harbor and not liable for the re-posting of content already flagged as infringing. Only the judicial authority has the power to impose on hosting service providers a duty to temporary and targeted surveillance in accordance with article 6-I-7 of the Law for confidence in digital economy (reversing TGI Paris, Apr. 28, 2011).
Court Decision

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 ) The court ruled that according to the Law on Information Society Services the intermediary has no obligation to monitor the information which he transmits or stores or to actively seek facts or circumstances indicating illegal activities, but after receiving information about the illegal activities or storing illegally acquired, created, modified, or used information, intermediaries are obliged to take active actions under the law. Since the defendant received the applicant’s notification about unlawful data being hosted at the service provider’s website, but acted passively and did not take any action to evaluate the report and...
Court Decision

Federal Supreme Court, Civil, Tribune de Genève case, 5A_792/2011

In the so-called Tribune de Genève case, the Swiss Supreme Court held that a newspaper is civilly liable (Article 28 of the Swiss civil code) when it hosts on its website the blog of a user whose content infringes on the personality rights of a third party. According to the Supreme Court, this liability is justified by the fact that the newspaper contributes to the diffusion of the infringing content to the public and a large circle of readers. The entity hosting the blog can be ordered to eliminate infringing contents on personality rights. Furthermore: ( 1 ) The Swiss Supreme Court explicitly clarified that the liability incurred by the infringement of personality rights is not related to the control over the infringing content. Put differently, since this type of liability does not require any fault (wilful intent...
Court Decision

Higher Court in Ljubljana, VSL sklep I Cpg 862/2013

( 1 ) The Court upheld an interim injunction issued against an hosting provider running a web forum where the primary defendant posted the statements tarnishing the reputation of a legal entity. ( 2 ) The court explicitly stated that liability is imposed not only on the immediate wrongdoer and any participants in the wrongdoing, but also on anyone who, in any way, knowingly and causally contributes to an infringement by another or creates a risk which could result in the breach of a protected legal right, provided that it is possible and reasonable for them to prevent the infringement. The Court held that the hosting provider should do everything that is technically possible to prevent infringement after being informed of the illegal content by the plaintiff. ( 3 ) Since the Court also made a reference to a legal...
Court Decision

Cour de Cassation, Google Inc. / Compagnie des phares et balises ; Google Inc./ Bac Films, the Factory (movie “L’affaire Clearstream”); Google Inc./ Bac Films, the Factory, Canal + (movie “Les dissimulateurs”) and Google Inc./Les Films de la Croisade, Goatworks Films (movie “Mondovino”) (Court of Appeals of Paris, January 14, 2011)

Google is eligible under the hosting safe harbor and cannot be bound by general monitoring obligation but may be enjoined to set up some targeted and temporary monitoring tools to filter out some content.
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], Atari Europe v. Rapidshare, I ZR 18/11

In this case, RapidShare neglected to check whether certain files violating Atari's copyright over the computer game "Alone in the dark" were stored on its servers by other users. The court acknowledged that reviewing every file that is uploaded by a user on the server would render RapidShare file-hosting service’s business impossible. Nevertheless, RapidShare should have checked its servers for similar infringing material stored by other users. Therefore, the Court noted, a hosting provider is not only required to delete files containing copyrighted material as soon as it is notified of a violation by the right holder, but must also take steps to prevent similar infringements by other users in the future. See also Husovec
Court Decision

Protodikeio Athinon [Athens Court of First Instance], Decision 4658/2012

( 1 ) The court ordered a temporary injunction against Greek ISPs in order to block access to certain websites that were thought to illegally contain or distribute copyrighted content on a large scale. ( 2 ) The court took care to mention that forcing the ISPs to filter data in order to prevent copyright infringement, restricting communication technologies such as p2p file exchange methods, and blocking entire websites when only certain web pages contained infringing content was disproportionate and against the Greek Constitution and European law but decided to order the blocking of the websites in question on the more questionable grounds of equating hyper-linking towards copies of copyrighted works with hosting such copies (the blocked websites contained hyper-links towards files of copyrighted works hosted on known...
Court Decision

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 merely technical, automatic and passive in nature) as required under Section 10 of the ISSA (Section 14 of the e-Commerce Directive) and therefore the news portal could not benefit from the exemption of liability. ( 2 ) The court found that the Supreme Court in the Delfi case had reached a similar conclusion than the European Court of Justice in the Google AdWords case (C-236/08 to C-238/08) meaning that if an enterprise is not providing a service that is of a mere technical, automatic and passive nature, the enterprise cannot be exempted from liability.
Court Decision

Tribunale di Milano [Tribunal of Milan], Civil, Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al., 3821/11

The Court of Milan found Yahoo! liable for copyright infringement. Infringement supposedly occurred with the publication of fragments of television programs through the now deceased Yahoo! Video service. The Court stated that the hosting safe harbor of the E-Commerce Directive could not be applied where the service is not a mere passive hosting of users' data, but is instead an "active hosting".
Court Decision

Andre Rau v. Google Images, TGI Paris

Google is eligible under hosting safe harbor and not liable for future posting of same images (no take down/ stay down obligation). Moreover, linking is not reproducing and indexation of pictures on Google image is necessary to freedom of expression, not infringing use of image.
Legislation

Regulation on Mandatory Filtering Measures to be Used at Locations of Public Access to Internet, approved by the Government Resolution No. 463 on April 28, 2010.

The Regulation requires all internet service providers who offer access to internet at public places to install mandatory filtering measures approved by the Information Society Development Committee under the Ministry of Transport and Communications. The legal basis for information filtering is the Law on the Protection of Minors Against the Detrimental Effect of Public Information, and measures are focused on filtering of information harmful for minors.
Court Decision

Kaschke v Gray [2010] EWHC 690 (QB)

The case revolved around the liability of a blog owner for the defamatory comment posted on his website. It was held that checking the spelling and grammar of such user-generated content triggers the finding of facts and circumstances from which the existence of infringing content should have been inferred; preventing the blog owner from relying on the “hosting” safe harbour of the E-Commerce Regulations 2002 (see above).
Court Decision

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 users to comment on news articles. Among the comments were 20 comments that according to the claimant, the majority shareholder of the ferry transport company concerned, infringed his personality rights. The claimant argued that the news portal is liable for the damage incurred. Although Delfi implemented pre-examination of comments (if comments included specific vulgar expressions, the comment was not published), this was seen as an ineffective measure. ( 2 ) The Supreme Court upheld previous judgments and reiterated that ( i ) Delfi is a provider of content services. As such, Delfi governs the content that is stored and should be distinguished from an...
Legislation

The Law on Electronic Commerce, Official Gazette No. 41/2009

( 1 ) This Law regulates the regulates the conditions and manner of information society services, obligations to inform service users, commercial messages, rules relating to the conclusion of the contract in electronic form, the responsibility of service providers of the information society, and monitoring violations. ( 2 ) Article 3, par. 1.3. defines an information society service as a "service provided at a distance, for a fee, through electronic equipment for data processing and storage, upon personal request of services users, and especially internet based commerce, offering information and advertising via the Internet, electronic search engines, as well as providing search data and services transmitted by electronic networks, providing access to a network or storage of services users’ data." Moreover, Article 3,...
Court Decision

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 through the defendant’s website. The case was nevertheless stayed, and referred to the CJEU on matters of EU-law based trademark infringement, liability limitation and preventive measures; the latter decision can be found in the EU section of the WILMap. Following the CJEU judgement, the UK case was settled.
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Jugendgefährdende Medien bei eBay, I ZR 18/04

Even if there is no direct responsibility of intermediaries due to the privilege of § 10 TMG, intermediaries have a duty to prevent others from violating youth protection law and competition law using their platform. This duty for intermediaries to interpose arises from § 3 UWG, and applies when one of his users commits a certain violation by selling goods without consideration of the protection of minors law. An intermediary has to prevent other violations from the same user by increasing observation. The intermediary must prohibit and stop transactions regarding the same product. The possible remedies include injunctions and damages.
Court Decision

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 “any unreasonable duties to review” and should not “challenge the entire business model” of the platform operator. It opined that an implementation of filtering software to flag objectively suspicious offers (e.g. due to low price for a certain keyword), then subsequently reviewed flagged transactions manually by employees, is a reasonable measure to make.
Legislation

Telemedia Act

The Telemedia Act (Telemediengesetz, TMG) applies to all providers of electronic information and communication services, such as ISPs, to the extent that they are not providing telecommunications services. The Telemedia Act, which is based on the EU E-Commerce Directive (Directive 2000/31/EC), lists three types of service providers that are exempted from a potential liability under certain requirements (safe harbors): (1) mere access providers (Section 8 TMG), (2) caching providers (Section 9 TMG), and (3) hosting providers (Section 10 TMG). The Telemedia Act also provides that service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or to search for circumstances indicating an illegal activity (Section 7 paragraph 2 TMG).
Legislation

Electronic Commerce Market Act

The eCommerce directive was implemented into Slovenian law by the Electronic Commerce Market Act (Zakon o elektronskem poslovanju na trgu, hereinafter ZEPT). ( 1 ) The safe harbor regime (articles 12 to 15 of eCommerce directive) is transposed almost verbatim into the act , thus providing liability exemptions for mere conduit service providers (article 9), caching providers (article 10) and hosting providers (article 11). ( 2 ) ZEPT also provides that service providers cannot be obliged to monitor information transmitted or stored by them or to search for circumstances indicating an illegal activity (article 8(3)). ( 3 ) The legal basis for injunctions is provided in article 9(3), 10(2), 11(2) and article 18 of ZEPT. It should be noted that the possibility to issue an injunction is explicitly limited to courts and...
Legislation

Law No. 2004-575, For Confidence in the Digital Economy (Loi pour la Confiance dans l’Economie Numérique a.k.a LCEN)

implementing limitations of liability provided in Council Directive 2000/31/EC (e-commerce Directive), specially to the benefit of routing, caching and hosting providers (see art. 6-I-2). No specific exemption for linking providers. Hosting providers cannot be bound by any general monitoring obligations but can be enjoined to conduct focused and temporary monitoring activities. Hosting providers have an obligation to keep identification information about their users (6-II).
Legislation

Legislative Decree Stb. 2004, 210, Law implementing E-Commerce Directive (2000/31/EC); Article 6:196c Dutch Civil Code [English version]

This law implemented the E-Commerce Directive into Dutch law, including an almost verbatim implementation of the limitations on liability of Articles 12 to 14 of the Directive. It added a new article to the Dutch Civil Code (DCC) in a section that deals with Dutch tort law. Section 6:196c DCC lists the limitations on liability subsections (1) to (4). Section 6:196c(5) indicates that the limitations on liability do not preclude the possibility of injunctions. The instruction to EU Member States that they shall not impose general monitoring obligations (Article 15 of the E-Commerce Directive) did not lead to changes in the DCC.
Legislation

Information Society Services Act

The Information Society Services Act (ISSA), which is based on the EU e-Commerce Directive (Directive 2000/31/EC), lists three types on services the providers which are exempted from potential liability under certain conditions: ( i ) mere transmission and access to public data communications network providers (Section 8 ISSA); ( ii ) caching providers (Section 9 ISSA); and ( iii ) hosting providers (Section 10 ISSA). The Act also stipulates that the service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or search any illegal activity (Section 11 ISSA).
Court Decision

Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Internetversteigerung I, I ZR 304/01, March 11, 2004

Auction portals like eBay are neither direct infringer nor aider and abettor and hence generally does not bear tortious liability for infringing offers of its users. Obligation to remove offers can based only on the disturbance liability and arises when the objected offer was brought to its attention and is “clearly infringing”. This obligation also requires that auction platform takes proactive steps to prevent infringement of that kind from occurring again.
Legislation

Decreto-Lei n.º 7-2004, de 7 de Janeiro [Decree-Law No. 7/2004 of 7 January], Lei do Comércio Electrónico [English Version]

( 1 ) Transposes into national law Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). In general, the decree presents a scope similar to the Directive. When examined in more detail though, one can observe that the decree, in certain aspects, went beyond the Directive, regulating a number of legal issues that were not explicitly covered by the Portuguese legal system and neither by the Directive. ( 2 ) The provisions of the Decree-Law that address the liability of service providers can be found in Chapter III (Articles 11 – 19) , entitled " Liability of networking service providers ." ( i ) The statute implements the liability regime...
Legislation

Law No. 22/2004 on Electronic Commerce

The Act implements e-Commerce Directive into Slovak law incorporating mere conduit, caching and hosting safe harbors, and prohibition of general monitoring obligation (§ 6). The implementation is of very inferior quality and misimplements several mechanisms that are most of the time possible to correct by the interpretation.
Legislation

Greek Presidential Decree 131/2003, implementing Directive 2000/31/EC

Articles 11-14 provide that the intermediary will not be held liable for the type of information transmitted through, cached in, or hosted on the intermediary’s services, as long as some prerequisites apply. More specifically, for the intermediary to not be held liable, the intermediary must not be the sender of nor be able to select the recipient of the transmitted information, must be unable to modify said information, must take action to remove or restrict cached or hosted information in a timely fashion, and must not be aware of the infringing nature of the information. The intermediary is not required to actively check the transmitted, cached or hosted information in order to determine potential infringement, but is required to report any infringements located, with respect to provisions regarding personal data...
Legislation

Legislative Decree N. 70 Implementing Directive 2000/31/EC

Implementing almost verbatim the eCommerce Directive and including mere conduit (Article 14), caching (Article 15), and hosting (Article 16) exemptions for intermediaries, together with the exclusion of a general obligation to monitor (art. 17)
Legislation

Act of July 18, 2002 on Providing Services by Electronic Means, O.J. 2002 No. 144, item 1204 as amended [English Version]

This Act implemented the EU Electronic Commerce Directive 2000/31/EC, introducing intermediary liability for unlawful content. Following the Directive it differentiates between mere conduit, catching and hosting, introducing no obligation to monitor or filter hosted or cached content as well as a basic notice-and-takedown procedure. The Act determines obligations of information service providers (ISPs), rules for insulating them from legal liability as well as rules for the protection of personal data treated by the intermediaries. ( 1 ) Definitions . According to the Act, “providing services by electronic” means to render a service by transmitting and collecting data by means of teleinformation systems, at the individual request of a service recipient, without the parties being simultaneously present, while the data...
Court Decision

Association "Union des Etudiants Juifs de France", la "Ligue contre le Racisme et l'Antisémitisme", le "MRAP" (intervenant volontaire) / Yahoo ! Inc. et Yahoo France

The French court's "Yahoo France" ruling
Organizations dedicated to combatting anti-semitism sued Yahoo in the Paris tribunal because of, among other things, Nazi memorabilia available through Yahoo's auction site. On May 22, 2000 ordered that Yahoo: - take all necessary measures to dissuade and make impossible any access via yahoo.com to the auction service for Nazi merchandise as well as to any other site or service that may be construed as an apology for Nazism or contesting the reality of Nazi crimes; - issue to all Internet surfers, even before use is made of the link enabling them to proceed with searches on yahoo.com , a warning informing them of the risks involved in continuing to view such sites. However, it accepted further evidence and argumentation. In subsequent proceedings, Yahoo argued: - this court is not competent to make a ruling in this...
Legislation

Law on E-commerce, as amended

implementing almost verbatim the Directive 2000/31/EC of 8 June 2000 on E-commerce regarding the mere conduit (Article 60), caching (Article 61), and hosting (Article 62) exemptions for intermediaries, together with the exclusion of a general obligation to monitor (Article 63).
Court Decision

Oberster Gerichtshof, fpo.at I, 4 Ob 166/00s, September 13, 2000

( 1 ) The Austrian political party FPÖ operates the website www.fpoe.at . It alleged that the operator of the domain www.fpo.at infringed its name rights because his site contained content similar to the official website of the party and was designed to mislead the visitors of the site into thinking it is the official website of the party. ( 2 ) The Court denied the domain name authority’s obligation to monitor all assigned domain names for an infringement. It also ruled that the deletion of a domain name cannot be the subject of temporary injunction.
Court Decision

Supreme Court, Criminal, Belgacom SA/NV & Scarlet SA/NV (The Pirate Bay case II), P.13.0551.N/1, October 22, 2013

( 1 ) Reversing the decision of the Anvers Court of Appeal of February, 14 2013, ordering the blockage of all the websites redirecting to "thepiratebay.org," and sending the case back to the Brussels Court of Appeal. ( 2 ) The Belgian Supreme Court confirmed that the public prosecutor did not violate the law by ordering the ISPs to block all websites redirecting to thepiratebay.org. The Court confirmed that far-reaching blocking orders against all national Internet service providers are lawful. According to the Supreme Court, a magistrate is entitled to order, ( i ) in a single injunction, ( ii ) all national Internet service providers to ( iii ) block access to IP rights-infringing content ( iv ) which is hosted by a server, linked to a specific main domain name, ( v ) by employing all possible technical means at...
Court Decision

Anvers Court of Appeal, Civil, The Belgian Anti-piracy federation ASBL/VZW v. Telenet SA/NV & Belgacom SA/NV (“The Pirate Bay case I), No. 3399/Rep. 2011/9314, September, 26 2011

Reversing the decision of the Anvers Court of First Instance of July, 8 2010 and ordering Belgian ISPs, Telenet and Belgacom, to block DNS extensions for 11 domain names related to ThePirateBay. The Court clarified that ISPs do not themselves infringe copyright and are not liable for the content transmitting though their services. However, the safe harbours included in the e-commerce Directive do not prevent the court to order them to block infringing webistes, if, according to Article 8.2 of the Infosoc Directive "their services are used by a third party to infringe a copyright or a related right." These blocking orders, the Court continued, do not impose on the ISPs a general obligation to monitor the information that they transmit because the injunction only concerns a number of exhaustively mentioned domain names....
Court Decision

Brussels Court of Appeal, Civil, Scarlet Extended SA/NV v. SABAM (“The Tiscali/Scarlet case”), R.G. 2007/AR/2424, January 1, 2010

The Court of Appeal of Brussels had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. The Court had to consider the extent to which Internet service providers should support the operational and financial burden of the fight against piracy. Given the complexity of the matter, the Brussels Court of Appeal decided to refer two questions to the ECJ before deciding: ( 1 ) Can ISPs be compelled to take preventive technical measures in order to prevent illegal downloading? ( 2 ) If yes, to what extent technical and financial burdens can be imposed on them? See also the ECJ's Scarlet Extended judgment .
Legal Opinion/Petition

Brussels Court of First Instance, Civil, SABAM v. Scarlet SA/NV (“The Tiscali/Scarlet case”), 04/8975A, June 29, 2007

In its report filed January, 3 2007, the expert witness presented 11 solutions that can be applied to block or filter file sharing, including 7 applicable to Scarlet/Tiscali. On the basis of this report and the submissions of the parties, the Court ruled that technical solutions do exist to stop copyright infringements of music files via P2P file sharing. Accordingly, the Court ordered Scarlet to implement such measures to prevent future damage, within a period of time of six months and under a penalty of a fine of 2,500 euros per day of violation. Scarlet was also ordered to provide SABAM a description of the measures taken.
Court Decision

Brussels Court of First Instance, Civil, SABAM v. Tiscali SA/NV (“The Tiscali/Scarlet case”), 04/8975A, November, 26 2004]

( 1 ) The Court had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. ( 2 ) The Court confirmed the possibility of introducing an injunction based on copyright infringement against an access provider even if said provider can benefit from the liability exemption regime provided for in the eCommerce Directive. The injunction does not presuppose any prior finding of fault, and therefore liability, on the part of the intermediary. ( 3 ) However, if the theoretical possibility of a blocking order against ISPs was confirmed, it remained to be seen if the provider has, in fact, the material possibility to comply with such an order. The Court ordered an expert testimony on this subject and the reopening of the...
Legislation

Law on Electronic Commerce (spec. Art.13-18), December 24, 2006 [English version]

( 1 ) The liability of Internet Service Providers (ISPs) is regulated by the Law on Electronic Commerce. The law is implementing the Directive 2000/31/EC (E-Commerce Directive) on electronic commerce regarding ISP liability.&nbsp ( 2 ) The provisions of this act aim mainly to limit the liability of ISPs by explicitly determining the cases where an ISP might not be held liable, which differ depending on the type of services provided (i.e, hosting, linking, safekeeping in cache memory, etc). Further, the lack of a general monitoring obligation on ISPs is also stated as a principle, providing that the ISP is obliged neither to monitor the information which it stores, transmits or makes accessible in the process of provision of information society services, nor to look for facts or circumstances indicating illegal activity...
Legislation

Law No. 480/2004, July 29, 2004, on Some Services of the Information Society

The Act implements e-Commerce Directive into Czech law incorporating mere conduit (§ 3), caching (§ 4) and hosting safe harbors (§ 5), and prohibition of general monitoring obligation (§ 6). The implementation unfortunately instead of the negative language of the Directive (“is not liable if ..”), uses a positive one (“is liable if ..”), which gives an impression that losing of safe harbors leads to establishment of the liability.

North America

Proposed Law

SESTA and related sex-trafficking-related amendments to CDA 230

SESTA and FOSTA SESTA (in the Senate) and FOSTA (in the House) are both bills that would amend Communications Decency Act Section 230 ( CDA 230 ) to create new liability for intermediaries in sex trafficking cases. Both are responses to judicial victories by Backpage, a classified advertising site that includes adult services listings. After Backpage successfully relied on CDA 230 immunities, new facts came to light, including claims that Backpage employees worked directly with sex traffickers to help draft advertisements. At least one case, Doe v. Backpage, is ongoing and may lead to a different result under CDA 230. SESTA, the Stop Enabling Sex Traffickers Act, would create new civil and criminal claims in sex trafficking cases. It would expand federal criminal law, which applies to platforms regardless of CDA 230....
Court Decision

EMI v. MP3Tunes

This case concerns the latest business venture of serial copyright defendant Michael Robertson. In earlier proceedings, a jury ruled against the company, MP3Tunes. Here, the Circuit court considers multiple issues, including repeat infringer policies and red flag knowledge under the Digital Millennium Copyright Act (DMCA). Eric Goldman provides a more detailed summary here . Regarding the repeat infringer policy, the Second Circuit says: “at trial the plaintiffs could prevail by demonstrating that MP3tunes's failure to track users who created links to infringing content identified on takedown notices or who copied files from those links evidenced its willful blindness to the repeat infringing activity of its users.” It rejects arguments that this standard amounts to a monitoring requirement, in violation of 17 USC 512...
Court Decision

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013)

Music publisher brought action against operator of publicly accessible website, Veoh, which enabled users to share videos with other users and website’s investors, alleging direct and secondary copyright infringement. District court dismissed the claims against investors and granted summary judgment to website operator. Circuit judge held that Veoh was entitled to the DMCA safe harbor protection, that is the site has no obligation to police for infringing content on its site, and that publishers failed to state claims against investors for contributory infringement, vicarious liability and inducement of infringement.
Proposed Law

Copyright Amendment Bill, implementing a Three Strike System, introduced on April 27, 2010

( 1 ) On April 27, 2010, the Mexican Congress filed and published a bill to amend the Copyright Law based on the HADOPI model. The bill aimed to protect copyrighted works through internet services providers (ISPs) covering access, hosting, and other service operations. The purpose of the bill is to implement a three-strikes system that resembles HADOPI 2. ( 2 ) Rights holders can ask the Mexican Institute of Industrial Property (IMPI) to request ISPs to render two warnings to users that allegedly infringe copyrights on the Internet. A third strike could be made by requesting injunctive relief (or “preliminary measures”, but it is unclear what court action would follow). ISPs who do not render the warnings are subject to administrative sanctions. This bill requires that ISPs take the high burden of using different...
Court Decision

Yahoo Inc. v. LICRA

US court ruling on enforceability of French judgment
This case is the US follow-on litigation to a French court’s order , in 2000, for US search engine and portal Yahoo to restrict access to Nazi memorabilia auctions and materials. Yahoo maintained that the French order was improper, but also adopted a new, allegedly voluntary, global policy largely complying with it. French plaintiffs represented that they were happy with Yahoo’s compliance and would not seek further enforcement. However, Yahoo filed suit in U.S. District Court (N.D. Cal.) for declaratory judgment that the French Court's order was not recognizable or enforceable in the U.S. In two lower court rulings, the District Court determined that it had jurisdiction over the case, and that the First Amendment precluded US enforcement . The Ninth Circuit Court of Appeals reviewed the ruling, and then ruled a second...
Court Decision

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)

Record companies and music publishers brought copyright infringement action against Napster, an Internet service that facilitated the transmission and retention of digital audio files by its users. Circuit judge held injunctive relief was proper to impose duty to provide notice of copyright status upon plaintiffs, duty on service to search for copyrighted works that were subject of notice given by plaintiffs, and courts can require ISPs to use new filtering mechanism.

Oceania

Court Decision

Pokemon Company International, Inc. v Redbubble Ltd [2017] FCA 1541 (19 December 2017)

Redbubble allows users to upload images to be printed on t-shirts and other products. Customers can order products that are printed on demand by third party manufacturers. The upload and fulfilment functions are mostly automated - Redbubble operates as a marketplace platform with limited prior screening of uploaded content. Redbubble requires uploaders to warrant that their uploads are non-infringing copyright, and blocks certain keywords as search terms. The court found Redbubble had infringed copyright: directly, by communicating the applicant's images to the public. While the uploader was the 'originator ... who had placed the image on the Redbubble website', Redbubble was directly liable because it 'was responsible for determining that content through its processes, protocols and arrangements with the artists.' (at...
Court Decision

X v. Twitter

[2017] NSWSC 1300 (28 September 2017)
This case arose because an Internet troll used a series of Twitter accounts to attack and disclose financial information about the unidentified plaintiff, referred to as X. For the most part, Twitter removed the posts upon notification. X sued Twitter in Australia. Twitter, a Delaware corporation with primary locus of operations in California, did not appear to defend the case, presumably in order to avoid waiving jurisdictional defenses. That approach backfired: the court found personal jurisdiction over Twitter, and also concluded that it had the authority to order Twitter to comply with Australian law globally. It also accepted plaintiff's assertion that Twitter could proactively block the offending content going forward. The court states, somewhat confusingly. that Twitter can do so without proactively monitoring...
Court Decision

Federal Court of Australia, Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242

Sharman, who operated the Kazaa filesharing platform, were found liable for authorising the infringements of its users. The court held that Sharman knew that the Kazaa system was primarily used to share copyright material. Infringing activity attracted more visitors to the Kazaa site, which benefitted Sharman through advertising revenue. Although there was no Kazaa central server through which Sharman could control users’ activities, the court held that Sharman had the power to prevent infringements because it could have forced an upgrade of the software to inhibit infringement. The court considered, for example, that a keyword filter could have been implemented, or Sharman could have flooded users’ search results with files containing only copyright infringement warnings. Since Sharman had the power to take these...
Legislation

Broadcasting Services Act 1992 (Cth), Schedule 5, Cl 91(1)

Clause 91(1) of Schedule 5 of the Broadcasting Services Act 1992 (Cth) provides a general limitation of liability for internet service providers and content hosts from Australian State and Territory laws for material hosted on behalf of another. On its face, Cl 91(1) appears to provide a strong immunity similar in effect to Section 230 of the US Communications Decency Act. The Federal clause renders any State or Territory legislation and any rule of common law or equity invalid to the extent that it: subjects internet hosts or ISPs to criminal or civil liability for hosting or transmitting content where the host is not aware of the nature of the content; or requires an internet host or ISP to monitor, make inquiries about, or keep records of, content hosted or transmitted. In practice, Cl 91(1) has not been greatly...

South America

Court Decision
Other

Lourdes Pavioto Correa v. Facebook do Brasil LTDA.

Case n. 1037396
The plaintiff, who never used the services of the defendant, through family members became aware of the existence of a profile under her name which contained personal information about her. She brought the case to the lower court of her residence, in the countryside of the state of São Paulo. She asked for the immediate removal of the fake profile, the disclosure of the Internet Protocol address related to its creation, and damages. The lower court granted both the former, but awarded the plaintiff no damages. Both parties appealed the decision. The Appellate Court found in favor of the plaintiff's appeal, and denied the defendant's. In the decision, the justices held that the indemnity of the defendant is contrary to the system of consumer defense set forth by the Constitution and by the Consumer Defense and...
Legislation

Constitutional Law Against Hatred, for Tolerance and Peaceful Coexistence

ANC, 2017. Ley constitucional contra el odio, por la convivencia pacífica y la tolerancia, Official Gazette No.41.271
On November 8, the National Constituent Assembly (NCA) promulgated the Constitutional Law Against Hatred, for Tolerance and Peaceful Coexistence which establishes prison sentences of between ten to twenty years for those who incite hatred or violence through any electronic means, including social networks (article 20). The Law also establishes that intermediaries that do not remove within 6 hours from its dissemination (article 22) the messages containing war propaganda or promoting different kinds of hate speech - national, racial, religious, political or hate speech of any other kind ("mensajes que constituyan propaganda a favor de la guerra o apología del odio nacional, racial, religioso, político o de cualquier otra naturaleza") - shall be subject to sanctions ranging from fifty thousand to one hundred thousand Tax...
Legislation

Law 5653 of 2016, on the protection of children and adolescents against harmful content on the Internet.

This legislation focuses on various issues. It obligates Internet Service Providers (Access Providers) to develop and offer software that allow the detection, filtering, classification, deletion and blocking of content harmful to minors. The software must be installed in spaces that offer public access to the internet. The law creates a National Observatory for the Protection of Children and Adolescents (Observatorio Nacional para la Protección de los Derechos de Niño, Niña y el Adolescente en Internet – ONAI). The observatory is responsible for developing and executing a national plan to protect and promote the rights of minors in the Internet, to monitor the content on the Internet and prepare semiannual reports about the compliance with this law, to create and update a database of websites and improper content for...
Court Decision

F. D. S. c/ Google Inc y otro s/ medidas cautelares

Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, Sala II [National Civil and Commercial Court of Appeals, Federal District], Civil - incidente, Expte. N° 22592/2015/1/CA2, April 22, 2016
The lower court had entered an injunction ordering Google and Yahoo to remove all links and images related to plaintiff, a model who appeared in some photographs that initially surfaced on social media where she appeared next to a federal prosecutor, Alberto Nisman, whose highly publicized death was under criminal investigation. The Court acknowledged an overriding public interest in the information and the images at issue. The fundamental rights to freedom of expression and access to information, under these circumstances, outweighed the right to privacy and publicity. Moreover, the Court recognized that some of the URLs identified by the plaintiff belonged to journalistic media. Then, according to the decision, the plaintiff should have sued those sufficiently identified media outlets instead of the defendant search...
Court Decision

De Priete Yamila Daiana c/ Google Inc. y otro s/ medidas cautelares

Cámara de Apelaciones en lo Civil, Sala H, [National Civil Court of Appeals] - Incidente civil, Expte. N° 22595/2015, February, 2016
The plaintiff requested the blocking of any link to web sites in which photographs obtained from her Facebook account were published. This request was related to the news regarding the death of Alberto Nisman, an Argentine prosecutor. The Court rejected the request. First, according to the Court, the "highest disclosure of public information" principle prevailed as it was a case of public interest. There was a general interest to have access to this information. Second, the Court stated that Facebook's main objective consisted in sharing images and events. Consequently, limits to privacy had to be cautiously determined, especially when images relate to a case of public interest.
Court Decision

Albertario Claudia c/ Yahoo Argentina y otro s/daños y perjuicios

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal, Sala II [National Civil Court of Appeals, Buenos Aires Capital District], June 2, 2015
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. Similar to “ Giovanetti ”, the Court stated that a generic preliminary injunction ordering the removal of allegedly infringing content is not sufficient to make a search engine liable. However, in this case, the Court observed that although the lower judge’s order was too broad, the plaintiff had presented documentary evidence that contained a list specifying the infringing websites in issue. Thus, the Court concluded, Google had actual knowledge of the unlawful content and was liable for its failure to promptly remove it.
Court Decision

G. L. E. c/ Yahoo De Argentina Srl y Otro s/daños y perjuicios

Cámara Nacional de Apelaciones en lo Civil de la Capital Federal, Sala II [National Civil Court of Appeals, Buenos Aires Capital District], Causa N° 1841/2008, June 2, 2015
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. The Court held that preliminary injunctions are capable of determining whether certain content is ‘ prima facie ’ unlawful when they identify specific infringing content, as opposed to being issued in general terms (see “ Albertario ”). Accordingly, intermediaries are deemed to have actual knowledge of the infringing content specified in the preliminary injunction upon notice.
Court Decision

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 entered by the judge of the lower court compelling Google to remove from its search results the content related to plaintiff. After “ Rodr í guez ”, the Court of Appeals reviewed and modified the terms of the preliminary injunction on the grounds that it was too broad, effectively imposing an obligation to actively monitor content. Thus, it was the plaintiff’s burden to put the search engine on notice of the infringing content by reporting individualized URLs. After the final judgment, on appeal, the majority held that Google was not liable because it had complied with the modified preliminary injunction by blocking specific...
Court Decision

Nakayama, Alberto y otros s/ infracción a la Ley 11.723

Cámara Nacional de Apelaciones en lo Criminal y Correccional, Sala I [National Criminal Court of Appeals], Expte. N° 21964 / 2014, May 5, 2015
The Criminal Court affirmed the lower court’s decision and declared Taringa's stay of proceedings, a site that hosts content uploaded by its users. María Kodama, heir to Jorge Luis Borges, brought a lawsuit against Taringa based on her rights to the work authored by her husband. The Criminal Court decided on the basis of " Rodríguez ", applying the same standard to a service different from a search engine. According to the Criminal Court, Google and Taringa are both "intermediaries whose main objective is to serve as a link" and reaffirmed that "there is not an obligation to verify the content ex ante but afterwards in case it is reported". The Court stated that "search engines" (or platforms like Taringa) are responsible for third-party content when they have "actual knowledge" of the unlawfulness of such content....
Court Decision

M. Belen Rodriguez c/Google y Otro s/ daños y perjuicios,

Corte Suprema [Supreme Court], Civil, R.522.XLIX.
This landmark case addressed the liability of search engines for linking in search results to third-party content that violates fundamental rights or infringes copyright. Because Argentina had no intermediary liability legislation at the time, the Supreme Court reviewed domestic and international law, and reasoned from tort principles and constitutional or human rights law. Its decision was largely favorable to search engines. The Court ( 1 ) repudiated a strict liability standard on the basis of the threat it would pose to free expression rights; ( 2 ) held that search engines could not be liable for unlawful content upon notification unless a public authority had adjudicated the material as unlawful, with exceptions for cases of "gross and manifest harm"; ( 3 ) rejected any filtering obligation to prevent infringing...
Legislation

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 used as a reference for the negligence standard of liability based on actual knowledge under “ Rodriguez ” . The said article does not have an exact substitute. However, the negligence standard can be found in Article 1721 and Article 1724. Moreover, Article 53 has been applied in decisions dealing with search engines ’ liability with respect to thumbnail linking. Article 53 . Right of publicity. In order to record or reproduce a person ’ s image or voice, in any way, such person ’ s consent is necessary, except in the following cases: a) where the person participates in public acts; b) where there is a higher scientific,...
Court Decision

Superior Court of Justice, Fourth Panel, Google Brazil v. Dafra, Special Appeal No. 1306157/SP

Decision held that the ISP is liable for not acting to takedown all copies of a video (parodying a commercial of the motorbike company Dafra) that was uploaded several times by multiple users, regardless if there was not a precise URL indication of such videos. In particular, the SCJ noted that "(…) this special appeal is limited to the remaining obligation regarding those videos that contain the insulting title, whether they have been precisely appointed by the authors (with the mention of the URL's), or not, so long as they exist on the site with that precise ‘title’, and, after the provider has been formally notified of their existence. … there is reference about an expert testimony in the case records in which it was verified by the technical feasibility of controlling videos on YouTube, having the Court Expert...
Court Decision

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 (see below Da Cuhna for more background information). The plaintiff, a former model, sought an order requiring Google and Yahoo to: ( i ) permanently block from the search results the links to webpages displaying prostitution ads and pornography whenever they included her name or images, which allegedly violated her constitutional rights; (ii) stop any commercial unauthorized use of her image and name, which allegedly infringed her publicity right and, (iii) pay damages. ( 1 ) Specifically, the Court of Appeals first decided that strict liability is not compatible with freedom of expression and rejected the plaintiff’s request...
Court Decision

Court of Appeals of Valparaíso, Abbott vs Google

The plaintiff sought an injunction and relief against a series of Chilean websites as well as Google, claiming that the websites, along with blogs hosted by Google, were making slanderous or offensive accusations against the plaintiff, who is a lawyer. These websites claimed that the plaintiff is corrupt and collaborated with the military dictatorship in the second half of the 20th Century. The Court agreed with the plaintiff and ruled that the right to plaintiff’s honour was affected. The Court ordered the websites to remove the offensive content, including blog posts with offensive accusations. Additionally, the Court ordered Google to establish a filtering mechanism that automatically prevents the publication of “unequivocally” slanderous content. The decision was not appealed.
Court Decision

Google Brasil Internet LTDA. vs. Maria da Graça Xuxa Meneghel

Superior Court of Brazil. Special Appeal No. 1.316.921 - RJ (2011⁄0307909-6)
Civil and Consumer law. Internet. Consumer relations. Applicability of the Consumer Protection and Defense Code. Irrelevance of gratuity of service. Internet search engine. Lack of necessity to prior filtering of the searches. Non-applicability of restrictions to the results. Public content. Right to information. (Translated from the original by Felipe Busnello) Maria da Graça Xuxa Meneghel is a famous television show host in Brazil, who has made a notorious career in hosting shows aimed for children, and is widely known by the moniker “raínha dos baixinhos”, which translates to “queen of the little ones”. Prior to becoming famous for her television shows, she played a part in a Brazilian film titled “Amor Estranho Amor” (Love Strange Love). The movie is about the son of a luxurious prostitute (the latter played by the...
Proposed Law

Draft Law No. 241 of 2011 – Senate by which a statute is issued to regulate copyright and related rights infringement liability on the Internet

This bill was passed in 2011 before the Senate to implement the FTA between Colombia and USA. However, the bill was archived few months later, when it was evident that there was no political willingness to push it through. It featured liability exemptions for Internet Service Providers (art. 4), including mere conduit (art. 5), caching (art. 6), hosting (art. 7), information location tools (search tools, hyperlinks and directories; art. 8) exceptions, for infringements to copyright and related rights by third parties that take place through systems or networks controlled or operated by ISPs. Providers of such services will not be required to compensate damages and will not be consider liable as long as they meet the conditions according to the nature of the service provided. These conditions include expedited removal...
Legislation

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 defined in Artice 5 Y . A number of Articles deal specifically with intermediary liability. Article 85 L provides a liability limitation for ISPs as long as they comply with the conditions and requirements of this law, regardless of potential regular civil liability. Article 85 M provides general conditions for limiting liability of transmission, routing, or connection providers that do not modify or select content, or initiate or select the destination of transmissions. Article 85 N provides general conditions for limiting liability among caching service providers that respect access and update...
Court Decision

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 of a school, claimed that the site administrator should be held liable for a slanderous accusation posted against her. The plaintiff claimed that the accusations affected her constitutional rights of freedom of teaching and property. A co-plaintiff claimed that his freedom to work was equally affected. The Court of Appeals rejected the claim by recognizing the need to enforce freedom of opinion and freedom of information without prior censorship. Data protection and regulation of journalism were also mentioned by the Court to prevent identification of possible defendants. The Court of Appeals established...
International Agreement

Free Trade Agreement (FTA) between Peru and the United Sates, signed on April 12, 2006 (Chapter 16, Intellectual Property Rights, Art. 16.11, 29. Limitations on Liability for Service Providers)

( 1 ) This FTA has miscellaneous rules concerning IP Rights and ISP Liability, which resemble closely to the US DMCA provisions. However, the national implementation of intermediate liability rules for services providers is still pending with no clear schedule. ( 2 ) This Agreement also includes a side letter with particular rules regarding the information that notifications must include.
Court Decision

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, not the manager of the website or the provider of connection. This decision recognizes the lack of rules for internet content, but it also recognizes that only ex post control over content is possible or to be expected. Upon noticing “evidently” offensive content, providers should take measures to prevent further harm, but they are not liable for damages before that moment. The decision establishes, but does not explain, the principle of “freedom of the information that circulates on the internet”.