Civil Liability For Meshing Publishing: The Cjeu Clarifies The Constabulary

Professor Lorna Woods, co-author of Steiner & Woods, EU Law

Introduction

Yesterday’s CJEU judgment inwards Papasavvas is the most recent inwards a line of cases seeking to line the edges of the concept of ‘intermediary’ for the purposes of European Union data technology scientific discipline law, a interrogation that has larn rather to a greater extent than problematic than when the eCommerce Directive was set about drafted inwards 2000. Then, the role of intermediaries was much to a greater extent than technical in addition to related to transmission in addition to technical access. Since in addition to then the marketplace has moved on amongst the evolution of many services that are at nowadays viewed every bit of import for the access in addition to usage of content on the Internet. Many of these services blur the boundaries betwixt transmission services in addition to content services. To what extent are those services neutral intermediaries? While inwards many respects this example could hold out seen every bit quite straightforward, it hints at soundless yet unresolved questions in addition to highlights difficulties most reliance on European Union police inwards national courts.

Facts

Mr Papasavvas (‘P’) brought an activity for defamation inwards abide by of articles published inwards the daily national paper O Fileleftheros, on 7 November 2010, which were published online on 2 websites. He sought damages in addition to an injunction. The national courtroom referred the next questions:

(1)      Bearing inwards take away heed that the laws of the Member US on defamation deport on the capacity to supply data services past times electronic way both at national grade in addition to inside the European Union, powerfulness those laws hold out regarded every bit restrictions on the provision of data services for the purposes of applying Directive 2000/31 …?

(2)      If the reply to Question 1 is inwards the affirmative, do the provisions of Articles 12, thirteen in addition to fourteen of Directive 2000/31 …, on the interrogation of liability, apply to private civil matters, such every bit civil liability for defamation, or are they limited to civil liability inwards matters concerning concern to consumer transactions?

(3)      Bearing inwards take away heed the usage of Articles 12, thirteen in addition to fourteen of Directive 2000/31 … relating to the liability of data lodge service providers in addition to the fact that, inwards many Member States, an activity must be inwards monastic tell for a prohibitory injunction to hold out granted which volition rest inwards forcefulness pending total completion of the proceedings, do those articles do private rights which may hold out pleaded every bit defences inwards police inwards a civil activity for defamation, or must they operate every bit an obstruction inwards police to the bringing of such actions?

(4)      Do the definitions of “information lodge service” in addition to “service provider” inwards Article 2 of Directive 2000/31 … in addition to Article 1(2) of Directive 98/34 … comprehend online data services the remuneration for which is provided non straight past times the recipient, but indirectly past times way of commercial advertisements posted on the website?

(5)      Bearing inwards take away heed the Definition of “information service provider”, set downwards inwards Article 2 of Directive 2000/31/EC in addition to Article 1(2) of Directive 98/34 … could the following, or whatever of them, hold out regarded every bit a “mere conduit” or “caching” or “hosting” for the purposes of Articles 12, thirteen in addition to fourteen of Directive 2000/31:

(a)      a paper that operates a costless website on which the online version of the printed newspaper, amongst all its articles in addition to advertisements, is posted inwards pdf format or about other like electronic format;

(b)      an online paper which is freely accessible but the provider obtains coin from commercial advertisements posted on the website, where the data contained inwards the online paper comes from the newspaper’s staff and/or freelance journalists;

(c)      a website which provides (a) or (b) higher upwards for a subscription?’

Judgment

The Court dealt set about amongst queries raised regarding admissibility.  P raised questions most timing: the proceedings at national grade are at an early on stage, to the indicate that the defendants inwards the national activity receive got non yet filed a defence.  On this basis, P argued that the questions referred must hold out hypothetical every bit the nature of the dispute had non yet been defined. The Court did non address this declaration straight but instead stated that ‘the description of the legal in addition to factual framework of the proceedings inwards the monastic tell for reference seems to suffice so every bit to permit the Court to brand a ruling’. 

P had also argued that the defendants did non autumn inside the orbit of the e-Commerce directive in addition to so questions relating to its interpretation were unnecessary. This is of class a footling circular in addition to the Court rejected the argument, pointing out that the orbit of the Directive in addition to the applicability to the defendants was ane of the principal issues that needed to hold out resolved. Having determined that, the Court re-ordered the questions referred in addition to started amongst interrogation 4 on the application of the Directive.

The Court reformulated the question, asking whether ‘information lodge services’ (ISS) every bit defined inwards the directive ‘covers the provision of online data services for which the service provider is remunerated non past times the recipient, but past times income generated past times advertisements posted on a website (para 26).’ The Court re-iterated that the Definition of ISS has 4 elements:

·         ‘normally provided for remuneration’;

·         at a distance;

·         by electronic means; in addition to

·         at the private asking of a recipient of services.

The in conclusion iii seemed non-contentious, but what concerned the national courtroom was the number of remuneration, every bit the user did non pay to access the website.  The Court in addition to then referred to recital xviii of the Directive, which expressly excludes the possibility that a service volition autumn exterior the directive but because payment is indirect.  In this at that spot is a similarity to the CJEU’s reasoning inwards Bond van Adverteerders in addition to Others (paragraph 16).

Having determined that the directive could apply to data services such every bit those inwards number here, the Court in addition to then considered interrogation 1 inwards which the referring courtroom is effectively asking whether the directive precludes the application of rules of civil liability for defamation to ISS providers.  The directive applies the regulation of domicile province dominion to service providers, amongst the corollary that Member US should non impose additional rules on services coming from other Member States.  Given that the defendants inwards the domestic proceedings were based inwards the same Member State every bit P, the number of whether the civil defamation rules constituted a restriction did non apply, though the Court noted that such rules autumn inside the orbit of the directive (at Article 2(h)).

The Court in addition to then went on to consider whether the defendants could do goodness from the intermediary immunity provisions inwards Articles 12-14 of the Directive. The Court considered the role of these provisions, in addition to relying on its reasoning inwards Google French Republic in addition to Google  (paragraph 113) in addition to L’Oréal in addition to Others (paragraph 113) stated that they applied to intermediaries in addition to activities which are of ‘a but technical, automatic in addition to passive nature’, that the ISS provider has neither noesis of nor command over the data which is transmitted or stored in addition to takes a neutral approach to content. The Court highlighted factors such every bit assisting clients inwards drafting commercial messages, or inwards optimising presentation of content.  It concluded:

Consequently, since a paper publishing fellowship which posts an online version of a paper on its website has, inwards principle, noesis most the data which it posts in addition to exercises command over that information, it cannot hold out considered to hold out an ‘intermediary service provider’ inside the pregnant of Articles 12 to fourteen of Directive 2000/31, whether or non access to that website is costless of charge. [45]

So, inwards such a circumstance, a paper cannot claim exemption from civil liability.  Given this answer, it was non apparent that the Court needed to address interrogation (2). Nonetheless, it confirmed that it made no departure whether the example involved concern to consumer or consumer to consumer cases. [50]

The in conclusion issues dealt amongst were those raised past times interrogation (3), though ane time to a greater extent than the Court noted that answers to this interrogation powerfulness non hold out necessary given that Articles 12-14 did non apply.  The Court summarised this interrogation every bit asking whether Articles 12-14 prevent the adoption of interim measures (such every bit the injunction prohibiting publication) or whether those articles do private rights which the ISS provider may plead every bit defences inwards police inwards the context of legal proceedings such every bit those inwards the principal proceedings. As regards the set about element, the Court noted that – dependent acre to the principles of equivalence in addition to effectiveness, matters every bit to weather condition nether which remedies powerfulness hold out available were matters for national law. [53]

The instant chemical ingredient effectively concerns the direct effect of the immunity provisions: tin they hold out relied on inwards the context of a dispute betwixt private parties. The Court returned to the full general example police on horizontal direct effect of directives, arguing that ‘with regard to proceedings betwixt individuals, such every bit those at number inwards the principal proceedings, the Court has consistently held that a directive cannot of itself impose obligations on an private in addition to cannot so hold out relied on every bit such against an individual’ [54] but that indirect effect/doctrine of consistent interpretation from Von Colson would apply. [56]

Comment

While this example at the headline grade came to the right reply - people who write or (first) release content on the Internet are non intermediaries - the example raises a dyad of issues worth pondering further.

First off, at that spot was no Advocate-General’s opinion.  Querying this powerfulness seem churlish, given that I’ve precisely said the Court got to the right answer, in addition to on the facts the judgment is a straightforward application of the Court’s existing police on Articles 12-14 inwards Google in addition to L’Oreal.  It is, however, a sensitive area: currently a case, Delphi, concerning a intelligence site in addition to the self-same provisions is awaiting a judgment from the Grand Chamber of the European Court of Human Rights on whether at that spot was a breach of liberty of appear inwards finding the journalists liable for defamation (see the Chamber judgment here).  While at that spot is a crucial factual departure betwixt the 2 cases (Delphi concerns liability for user generated content, non journalism), it is noteworthy that although Recital nine recognises the significance of ISS for liberty of expression, Papsavvas did non fifty-fifty consider whether at that spot was a liberty of appear declaration inwards issue.

To about extent most of the questions referred past times the national courtroom seem to reverberate a lack of familiarity amongst the internal marketplace arrangement generally. So, the application of the rules inwards this example powerfulness seem straightforward, but they powerfulness non ever hold out so.  While it should come upwards every bit no surprise that national rules imposing civil liability on a service ‘import’ could hold out a restriction, nor that ‘home’ regulation should non hold out circumvented past times reliance on provisions aimed at cross-border services, the decision of the identify of institution may inwards itself hold out problematic, every bit cases on cross-border boob tube services receive got shown.  The eCommerce Directive seems to refer to the Court’s full general example police on this indicate (Article 2(c), Recital 19): the Court receive got the institution indicate every bit proven hither inwards Papasavvas. 

There is a run a peril of forum shopping and, past times contrast to the Audiovisual Media Services Directive (which deals amongst television), the eCommerce Directive has no ‘anti-abuse’ clause, although Member US may derogate on limited grounds (article 3(4), Recital 24). In this case, the Court did non address the interrogation of whether rules relating to defamation could hold out seen every bit existence justified nether the protection of human dignity inwards Article 3(4)(a)(i).  Of course, a arrangement which allows or fifty-fifty encourages delocalisation to about other Member State has the lawsuit of adversely affecting would hold out plaintiffs nether the national rules, especially private persons in addition to small-scale businesses. Even inwards rules of conflicts allow activity inwards the injured party’s domicile state, at that spot may hold out questions every bit to applicable police inwards the lite of the domicile province regulatory regulation (see eDate in addition to Martinez). So, patch the eCommerce Directive claimed non to deport on rules on conflicts of police (Article 1(4)), at that spot is an interrelationship at that spot in addition to ane which may deport on the effectiveness of remedies for users. 

Similarly, in addition to every bit the Court itself noted, remuneration has typically been widely interpreted.  The Court referred to Bond van Adverteerders, a example concerning free-to-air commercial boob tube – a set-up which has clear parallels amongst costless to user cyberspace services.  In its example police on Article 56 TFEU (freedom to supply services), the Court has gone further, fifty-fifty suggesting (in Deliege) that an amateur judoka was remunerated because she took business office inwards competitions which carried advertising in addition to which were televised.  Essentially the Court seemed to hold out saying, ‘there’s coin at that spot somewhere….’. Of course, at that spot volition hold out hard questions inwards about cases- ‘amateur’ content available freely: is that an ISS, in addition to does the reply to the interrogation alter if the platform carries advertising alone separately? In Delphi, it was the user generated content that was problematic. This interrogation did non arise, however, every bit it was the underlying website that was sued, in addition to it clearly was a commercial entity for the same ground that the paper inwards Papasavvas was.

Perhaps the interesting questions are those which bargain amongst the interface betwixt the immunity provisions in addition to national law.  The usage of these provisions is to encourage the evolution of the digital environment, especially cross border services (recital 40). It should so brand no departure if the service the intermediary carries is betwixt businesses, or concern to consumer, every bit indeed the Court ruled. The national courtroom also questioned whether injunctions were permissible. The Court handed this ane off to national procedural autonomy, but it is arguable that the price of the directive advise that injunctions are inwards regulation permissible: each of the intermediary exceptions province that the exemption from liability does non deport on the possibility of the Member State’s legal arrangement requiring the intermediary to terminate the offending activity.

Finally, nosotros come upwards to the interrogation of whether intermediaries tin rely on the exemption straight earlier national courts: inwards effect, do these provisions receive got horizontal direct effect? The Court dealt amongst this past times returning to basic principles precluding such an effect, but inwards doing so it argued that Union police precludes the imposition of an obligation on an individual. Of course, inwards this example the directive is non imposing an obligation on an private but rather removing it. In this sense, although for unlike reasons, the seat is closer to that inwards cases such every bit CIA Security International or fifty-fifty Wells, where a national obligation is disapplied. This expanse of police is problematic generally. Suffice it to banking concern annotation hither that this approach knocks a potentially large hole inwards the protection of intermediaries if the Member State has non implemented, or non implemented correctly, indirect effect notwithstanding.

Barnard & Peers: chapter 6, chapter 14

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