Moderating and Legal Indemnity for Hosters
A crucial question for many ISPs is: are we going to moderate or
not? The downside of moderating is that the hoster brings liability
on itself when it does, because in that case the statutory
conditions of indemnity of Section 6:196c of the Dutch Civil Code
can no longer be relied on. In the case at issue, the Court has
rendered a different, and in my view a wrong,
judgment.
Reliance on Indemnity Despite
Moderating
The reason for the summons was a topic on the complaints forum
http://www.internetoplichting.nl("Internetfraud.nl")
about alleged fraud by Trendylaarzen ("Trendy
boots"). Visitors and moderators had extensive discussions on
the delivery problems with online purchases through Trendylaarzen.
Moreover, private information of the entrepreneur behind
Trendylaarzen was posted. Trendylaarzen therefore demanded the
removal of the topic and the making available of the IP addresses
or address details of those who had put the private information
online.
The question to be assessed by the Court was therefore whether
these postings were indeed unlawful and had to be removed. In order
to answer this question, the Court distinguished between postings
by visitors and postings by moderators. The Court considered
postings by moderators to be postings of the website holder
himself, and postings by visitors to be postings of third parties.
This opinion is not remarkable per se. But then, the Court
considered that the question as to what extent
internetoplichting.nl was liable for information of third parties
had to be assessed on the basis of Section 6:196c subsection 4 of
the Dutch Civil Code ("BW"), which concerns the statutory
indemnity against liability for hosting. ISPs that only store
information at the request of a third party without having any
further substantial involvement, and that provide purely technical,
automatic and passive services, can rely on this statutory
indemnity against liability. It is necessary in that case that the
ISP does not know or - in case of claims for damages - should not
know that the site contains unlawful information. An ISP can also
not be held liable in the event that it is aware of the unlawful
information and subsequently makes this information inaccessible or
removes it at once.
The ruling of the Court is remarkable, because the activities of
internetoplichting.nl do not consist of only storing information at
the request of a third party. The role of the ISP is not passive
here and the services are not just automatic and technical. Through
the moderators, the hoster meddles with the information coming from
a third party, and does more than purely storing this information.
The moderators read the texts and can remove and alter them or move
them elsewhere. According to the literal text of the law, this is
not hosting within the meaning of Section 6:196c subsection 4 of
the BW. The question of whether internetoplichting.nl is liable for
the texts of third parties should therefore in my view have been
assessed on the basis of Section 6:162 of the BW, but the Court
chose to apply Section 6:196 c subsection 4 of the BW. However,
according to the Court's preliminary judgment,
internetoplichting.nl is not liable for the texts of its visitors,
because the information was not unlawful; after all, the postings
were about the non-delivery or late delivery by Trendylaarzen.
Another fact that plays a role is that a private address that had
been posted was removed at once by a moderator.
The Court did not assess the question of whether
internetoplichting.nl is liable for the postings of the moderators
on the basis of Section 6:196 c subsection 4 of the BW, giving as a
reason for this that these were not postings of third parties. The
Court argued that although the texts on the website are harmful for
Trendylaarzen, this does not lead to liability. However, there may
be unlawful behavior if the ISP does not provide the interested
party, when asked, with the name and address details of those who
have posted incriminating or private information.
Claims
Not Awarded
The Court further stated that the texts the moderators had
posted were unnecessarily damaging. However, this could not lead to
awarding the claims to Trendylaarzen, since it is not certain, in
the Court's opinion, that Trendylaarzen has summoned the
correct party. Trendylaarzen summoned the party that is registered
with the Foundation for Internet Domain Registration in the
Netherlands as the holder of the website, and of whom the trade
name 'internetoplichting.nl' is mentioned in the Trade
Register. On the website, however, another company - 2dehands.nl
("Secondhand.nl") - is mentioned under the button
'Donate', and it is mentioned that internetoplichting.nl
was established by 2dehands.nl. With a reference to Section 3:15(1)
under a of the BW, the Court argued that 2dehands.nl could well be
the party providing an information society service, and then
2dehands.nl should have been summoned. Preliminary relief
proceedings leave no room for an examination of the facts in order
to determine whether the correct party was summoned.
Trendylaarzen summoned the correct legal entity on 20 February
after all, and 2dehands.nl is ordered by the Court to remove the
topic on Trendylaarzen from internetoplichting.nl and other
websites affiliated with 2dehands.nl and keep this topic removed
during six months. 2dehands.nl also had to post a rectification and
make IP addresses of certain users known to Trendylaarzen.
2dehands.nl pulled the plug out of internetoplichting.nl after this
ruling and contemplates to appeal to it.
No Consequences
for Practice
All in all, the first Trendylaarzen ruling is a remarkable one.
It is too soon for ISPs to start cheering; I think that this ruling
changes nothing to the legal framework that is in place. As soon as
there are moderators, there is no question of hosting anymore, and
the ISP can no longer lay claim to the statutory indemnity, as the
second Trendylaarzen ruling of March confirms. ISPs therefore still
have to make the choice whether or not to moderate.