Forum Administrator Not Liable For Offensive Texts
Court of Amsterdam, 1 October 2009, LJN: BK1571
Over the past few years there have been many civil-law
proceedings about the liability of forum administrators for
copyright infringements or infringements of privacy by messages of
visitors. The present matter concerns a criminal case regarding the
same issue. The question is whether the forum administrator of an
extreme right-wing forum Stormfront is responsible for the content
of the texts posted by visitors. Messages that are posted by
visitors on the discussion forum are public and visible to all
internet users. The forum is described as a 'White Nationalist
Community' and is characterized by discussions such as
'which race should be first to leave the
Netherlands'. The forum is administered by various forum
administrators. One of the Dutch forum administrators is regarded
by the Public Prosecution Office as a suspect for being responsible
for defamatory remarks.
The Public Prosecution Office argued that the suspect had made
intentional defamatory remarks in public and in writing about a
certain group of people because of their race and/or religion. Not
by posting something actively himself, but by maintaining, at any
rate by not removing, offensive texts that had been posted on the
forum by other visitors. For that matter: the visitor who had
posted the texts concerned was
convicted (in Dutch) for
intentional defamatory remarks. The Public Prosecutor was of the
view that the forum administrator as 'co-perpetrator'
was obliged to remove the defamatory remarks. The suspect forum
administrator brought forward a defense against this and argued
that he, in his capacity of forum administrator, could not be
held responsible for the messages that are posted by others on
the website. He moreover said that he was not aware of the texts
concerned as mentioned in the charges.
The Adjudication
The Court established in her
judgment of 1 October 2009 (in
Dutch) that the forum administrators of Stormfront have the
authority and possibility to delete or change messages of
visitors. The suspect indicated that he reads all messages of
new members, but when the members have become more experienced,
members are placed in a group that is not moderated anymore as a
standard. With regard to the texts mentioned in the charges, it
has not been ascertained that the suspect has read these texts.
The Court also does not think that a forum administrator is
obliged to screen all messages. The suspect was acquitted of the
charge.
In this case the forum administrator cannot be held responsible
for the contents of all texts that are posted on the forum. With
this phrasing the Court has kept some room for responsibility for
the contents of messages that a forum administrator clearly
did read or, for instance, was informed about it by a
third party.
Preventive control
Although based on various grounds, the judgment of
the criminal court partly corresponds to the law and established
case law about civil liability of forum administrators. The Dutch
law has specific rules concerning liability of service provider as
intermediaries in article 6:196c Dutch Civil Code, which are also
used in the discussion on the civil liability of forum
administrators. It is determined in this case law that when content
(text and images) is manifestly unlawful and a third party has
filed a complaint, this content must be removed. In most civil law
proceedings it has also been determined that a preventive check by
forum administrators cannot be imposed. That would be a too
far-reaching limitation of the freedom of expression.
There is one civil-law case that is very different from the
rest, it concerned another controversial topic: pedophilia. This
was a
case (in Dutch) between the
Netherlands Government Information Service
(Rijksvoorlichtingsdienst) and the association
Vereniging Martijn. The matter concerned photos of
children of the Royal Family on a forum for acceptance of
relationships between adults and children. In this judgment an
actual active duty to remove certain content was imposed on the
forum administrators of Martijn. It seems that this judgment
stands on its own and was particularly formed by the specific
circumstances (the combination of pedophilia and the Royal
Family).
It could be argued that there are specific circumstances in the
Stormfront case as well, as it concerns punishable remarks by
extreme right-wingers, who also are the target group of the forum.
However, in criminal law there is a presumption of innocence and it
could not be proven that the Stormfront forum administrator had
intentionally left the messages posted on the forum. It therefore
seems, that an obligation to perform preventive control is even
less likely under criminal law than under civil law. Which is a
good starting point in my opinion.