Procurator General Opines on Obligation of ISPs to Provide Subscriber Details to Third Parties

01 December 2005

Bart Beuving, Gerrit-Jan Zwenne

Pessers v. Lycos

In June 2005, the Dutch Procurator General issued his opinion on a case pending decision by the Dutch Supreme Court (“Hoge Raad”). The case in question, Pessers v. Lycos, concerns the obligation of Internet Service Providers (“ISPs”) to provide subscriber data to third parties. In essence, the Procurator General found that where an anonymous website owner publishes information that is sufficiently likely to be considered unlawful, the ISP is obliged to disclose the contact details of the website owner to the interested party. Although the Supreme Court may choose to ignore the Procurator General’s opinion, such opinions are generally considered authoritative.

Pessers, an “amateur trader” in post stamps via the marketplace ebay.com, felt his annual turnover of €350,000 was being threatened by a web publication, posted on a website of someone who remained anonymous. The web publication was entitled “stop the fraud” and stated that Pessers was a fraudster. The website was hosted by Lycos.

Pessers sent an e-mail to the hotmail address displayed on the website, demanding that the site owner remove his statement and identify himself. Pessers also requested that Lycos provide the name and address of the anonymous site owner. The site owner did remove his statement but did not reveal his identity. Neither did Lycos make his contact details known.

In interlocutory proceedings with Lycos, Pessers claimed the disclosure of the name and address of the anonymous website owner. The President in the proceedings allowed this claim but Lycos appealed against his decision. Lycos argued that such a claim requiring the disclosure of personal information could only be justified in weighty circumstances, i.e., if the information on the website is unmistakeably unlawful and the claimant has an important enough interest in the disclosure. Pessers asserted that his interest in disclosure was in order to sue the website owner for damages and prevent similar acts from occurring in the future.

On June 24, 2004 the Court of Appeal in Amsterdam clarified the applicable legal framework and gave clear and useful instruction on how to act under these circumstances. According to the Court of Appeal, the publicised information was not “unmistakeably unlawful”. However, the Court also held that an ISP is also obliged to make the requested information known to the affected party in case the information is not unmistakeably unlawful.

In case it is sufficiently likely that the publicised information can be unlawful and damaging to a third party, it would be social unacceptable if a third party, such as Pessers, has no real possibility to call the unknown person to account. Therefore, the Court found that a refusal of the ISP to provide the personal data of the website owner can be unlawful to a third party, particularly in the following circumstances:

  • the possibility that the information in itself is unlawful to the third party is sufficiently likely;

  • the third party has a reasonable interest in the disclosure of the personal data;

  • it is likely that there is no other, less radical possibility with regard to the website owner by which the identity of the website owner can be traced;

  • when the interests of the third party, the ISP and the website owner (as far as can be known) are considered equally, it is found that the interest of the third party should prevail.

Using these guidelines, the Court decided that the President was correct to rule that Lycos is obliged to make the personal data of the website owner known to Pessers.

Lycos brought an appeal in cassation (incidentally, Pessers’ defence was funded by a Dutch anti-piracy interest group) but this was dismissed by the Procurator General on June 24, 2005. According to the Procurator, a guarantee of anonymity leads to numerous socially unacceptable consequences and is therefore unacceptable. He also went on to highlight that the ISP provides the means by which a third party may offer unlawful information (which in itself is not an unlawful act by the ISP) and it is only with the co-operation of the ISPs that such acts can be controlled. Therefore, the limited effort of supplying the personal data requested can be expected of the ISP.

The Supreme Court’s decision is expected shortly.

First published inBNA International World Internet Law Report (October 2005 volume 6 number 10 page 27).