Liability of Forum Administrators for Copyright Infringements by Their Users
The Dispute
The foundation Stichting Maroc.nl maintains the
website www.maroc.nl on the Internet. One part of this
website is a forum where visitors of the site can have discussions
with each other. Users can also upload photographs to this forum,
which become visible to the other forum visitors. One user posted
an article on this forum that came from the news site
www.telegraaf.nl. This article contained a
photograph of the minor daughter of Dubos. As the author, Schuld
has the copyright to the photograph. Another user posted an answer
to the article, so that the photograph became visible on the
website for the second time.
Schuld and Dubos stated that Stichting Maroc.nl had posted the
article with the photograph twice on its website without the
permission of Schuld and Dubos. They argued that Stichting Maroc.nl
had infringed both the copyright of Schuld and the portrait right
of the daughter of Dubos and subsequently claimed damages.
Stichting Maroc.nl defended itself by stating that it had not
posted the image, but the users had. Furthermore, it claimed that
sufficient measures are being taken to remove unwanted
contributions, and pointed out that Schuld and Dubos had never
asked for the data of the relevant users.
The Adjudication
Since Schuld and Dubos have not disputed this, it
was established that the posting of the article was actually done
by two users of the forum. The Court held that the argument of
Schuld and Dubos that by conducting a public forum on the Internet,
Stichting Maroc.nl must be deemed to be the party that posted the
photograph, is incorrect. According to the Court, the users of the
forum are the infringers.
This does not mean in the Court's opinion that the forum
administrator is relieved of all responsibility for any
infringements of copyrights or portrait rights, but it goes too far
to require of a forum administrator that he checks each
contribution to the forum for such infringements prior to posting
it, or that he makes the posting of images completely
impossible.
However, a forum administrator can be expected to have an alert
attitude in counteracting such postings on the forum. The forum
administrator has to remove unwanted contributions on first demand
and has to facilitate that such demands are made. The forum
administrator also has to cooperate in retrieving the identity of
the real poster of copyright-protected material. The Court held
that there is no evidence that Stichting Maroc.nl has failed to do
so, since it was only informed of the infringements of
copyright/portrait right to the photograph when it was summoned to
appear in Court. Since Schuld and Dubos have not disputed that
Stichting Maroc.nl has removed the contributions at once, and they
have not asked the cooperation of Stichting Maroc.nl to retrieve
the identity of the posters, Stichting Maroc.nl has not failed here
either. The Court has therefore rejected the claim of Schuld and
Dubos.
Conclusion
A forum administrator does not have to check the
messages on a forum prior to their posting. A forum administrator
does have to remove unwanted contributions on first demand, as
those at issue here, and has to facilitate the making of such
demands. Now that Stichting Maroc.nl has removed the articles at
once after it was deemed to have become aware of the infringements,
it is not liable for the damage suffered by Schuld and Dubos. This
is in line with established case law on this subject, which
provides that content that is unmistakably unlawful must be removed
in reaction to a complaint by a third party. The Court also ruled
that a forum administrator must cooperate in the retrieval of the
poster's identity. This too is in line with established case
law, which provides that if information about a third party is
likely to be unlawful and harmful, it is obligatory to disclose
information about the poster of the message. Although this ruling
is not very surprising, many people have questions about this
subject considering its practical application. That is the reason
why we have chosen to include this ruling in this newsletter.