Website Holder Liable for Publication of Third-Party Photos
A discussion of a judgment of the Court of Amsterdam in
Preliminary Relief Proceedings dated 16 October 2008 (Bruno Press
B.V. / IMT B.V.), case list no. KG ZA 08-1710
By publishing photos on its website in which third-party
copyrights were vested, the website holder has infringed that
copyright, as a result of which this website holder was hold liable
for the damage arising therefrom.
The Facts
The claimant, Bruno Press, is a company aiming at the
exploitation of photos, videos and news. The company exploits,
inter alia, a data base with thousands of photos of, in
particular, international celebrities. A large part of these photos
was made by foreign photographers who are associated with foreign
agencies. Bruno Press is a representative of these agencies in the
Netherlands and offers the photos to third parties against payment
via its data base.
The defendant, IMT, is exploiting the website
http://www.showbiznewz.nl/. On this website,
photos have been placed that Bruno Press, as the rightholder,
markets in the Netherlands. This concerns 32 photos, including
photos of model Doutzen Kroes.
Dispute
Bruno Press has stated that the photos concerned are protected
by copyright and that Bruno Press is the license holder of these
copyrights. IMT would be infringing the copyrights and the moral
rights of Bruno Press by placing the photos on its website without
the approval of Bruno Press. Bruno Press has claimed removal of the
photos and compensation of damages.
IMT has stated that it does not place the photos on its website
itself but that this is done by visitors of its website to whom IMT
gives the opportunity to upload photos. Although IMT has recognized
that the photos of Bruno Press are protected by copyright and has
therefore removed them from its website, IMT is of the view that it
cannot be required to check at all times whether the material
placed on its website by visitors is protected by copyright. IMT
has said, however, that it will remove photos from its website
after having been notified of and having established that there is
copyright infringement.
The Court in preliminary relief proceedings has ruled that IMT
cannot claim the legal protection against liability as applies to,
for instance, hosting providers, who only create the
possibility to use a website. After all, IMT actively takes part in
the publication of the photos on its website. In addition thereto,
by the inviting lay-out of its website, IMT would have taken the
initiative to allow visitors to pass on information. The Court in
preliminary relief proceedings was also of the view that IMT should
have been aware that photos of celebrities are protected by
copyright and that that right is not necessarily vested in the
uploader of the photo. According to the Court, IMT has a certain
obligation to investigate.
According to the Court, by giving the opportunity to infringe
copyrights, IMT itself has actually infringed these rights, and the
Court deemed IMT liable for the damage arising therefrom. A mere
disclaimer on the website was deemed insufficient to exclude this
liability.
Conclusion
In this case the website holder is deemed liable for infringing
photos that it has placed and has allowed others to place on its
website, in so far as the latter is actually the case. It is not
clear how and whether visitors may indeed upload photos to the
website themselves. The visitors may, however, forward photos via
an email address. The photos would therefore actually be placed by
the website holder itself.
Unlike website holders, hosting providers are only
liable if they have been notified of the infringing material and -
if evident unlawfulness has appeared - have subsequently failed to
remove the material. In this case, visitors were invited to send
their photos to the website holder and therefore there was a
checking moment. The website concerned is not a forum where
visitors themselves can exchange information and photos without the
intervention of the website holder. The website holder determines
what is published on its website. The judgment is not innovative in
this respect, but only makes it clear once again that website
holders must be attentive when they place or allow others to place
third-party content on their website.