Removing Unlawful Publication from Internet Includes Asking Search Engines to Empty Cache
A discussion of the judgment of the Court of Alkmaar in
preliminary relief proceedings dated 3 June 2010
In an online publication, a woman and her husband have accused
several institutions of doing nothing to stop the sexual abuse of
her daughter and several grandchildren by her ex-husband. The
couple was ordered in preliminary relief proceedings to remove the
online publication from the Internet "to the extent that these
articles cannot be retrieved anymore in any way whatsoever by any
search request on the Internet". The order carried a penalty
of EUR 2,500 for each day of non-compliance, with a maximum of EUR
25,000.
The article was taken offline, but the claimant was not
satisfied yet, as the article still proved to be in the cache of
search engines, and could be found through the Internet. In a
recent
ruling (in Dutch) the Court of
Alkmaar in preliminary relief proceedings confirmed that
removing a publication from the Internet and making it
untraceable also means that search engines must be asked to
empty their cache. The Court explained that it had personally
tried this and it had turned out very easy to make such a
request. Because they had failed to do this, the couple
forfeited penalties amounting to EUR 22,500.
In cases concerning unlawful publications on the Internet it is
often claimed explicitly that the defendant also notify specific
search engines to have the article removed from their cache. Such
claims are sometimes denied, because it is the search engine's
responsibility what it puts in its own cache and thus what it
publishes; see for example
GeenStijl/Rechtenstudente (in
Dutch) for a ruling to this effect. Sometimes, however,
such a claim is allowed and then the defendant not only has to
remove the article from his own site, but also request search
engines to remove it.
I think that an order to ensure that a publication disappears
from the Internet altogether on pain of a penalty cannot be
awarded. After all a person can only be ordered to do something
that is in his power. Once third parties have copied your
publication or have put it in cache, all you can do is ask them to
remove the article.
The search engines that had to be notified were not specified by
the plaintiff. This way the defendant is always left holding the
bag. There are countless search engines and it is impossible to
notify them all. If the claimant does not specify which search
engines should be notified, it is impossible to make sure that an
article cannot be found through search engines anymore. There is a
big chance that some investigating will reveal a search engine that
still refers to the article. This way the claimant always wins the
jackpot. The claimant should have brought a clearer claim, and has
now wrongly been granted the imposition of penalties on the
defendants. This case calls for an appeal.