Dutch Court advertising websites not obliged stop infringing adverts

21 November 2006

Bart Beuving

On 3 May 2006 a Dutch Court (Court Zwolle-Lelystad) held in an interlocutory judgment that where a classified advertising website has a notice and takedown-procedure, it is not obliged to keep out infringing advertisements or to remove such advertisements of its own accord.

On www.marktplaats.nl, a classified advertising website, chairs are regularly advertised that infringe the rights of Stokke, producer of the TRIPP TRAPP chair. To discourage the sale of infringing goods in general, Marktplaats has developed a notice and takedown-procedure. This procedure allows a wronged party to report an infringement to Marktplaats by completing a form. If this form has been properly completed, Marktplaats then removes the advertisement. Stokke is of the opinion that this notice and takedown-procedure does not go far enough and that Marktplaats is obliged to refuse such advertisements of its own accord, or remove them from its website within 24 hours.

According to the Court however, Marktplaats’ duty of care does not extend so far that it is obliged to screen advertisements or remove the advertisements within 24 hours after placement on the website.

According to the Court, the determination of the scope of the duty of care depends on a number of factors. The Court first considered whether Marktplaats was aware of the damage. Next, the Court considered the part that Marktplaats played in the infringing activities. The more involvement Marktplaats had, the more it could be expected to discourage the infringing act. The Court’s view was that Marktplaats was only an intermediary and that generally in this situation advertising site hosts are not aware that they are selling an infringing chair. The Court also found it important in its assessment that Marktplaats only had an ‘indirect advantage’ from the infringing acting and not any direct revenues.

The Court also considered what measures might be appropriate for a classified advertising website such as Marktplaats to take. With reference to the Electronic Commerce Directive and its implementation history, it was concluded that supervision is not required from a service provider. The Court pointed out that the legislator and the authors of the Directive indicated that, in the fight against illegal activities self regulation plays a big part. The Court therefore attached great importance to the fact that Marktplaats has introduced a notice and takedown-procedure.

The Court thought that an important issue in the determination of the scope of duty of care is proportionality. Marktplaats may be required to take measures aimed at preventing or restricting damage to Stokke. What these are will depend on their cost impact on Marktplaats’ business operations.

According to the Court, Marktplaats complied with the duty of care to prevent damage within reasonable limits through the introduction of the notice and takedown-procedure. The Court considered it impossible to check advertisements preventively by means of filter technology: trained people would be required to recognise infringing chairs. This labour-intensive work would cost a lot of money and would furthermore cause a considerable delay in the time in which advertisements would appear on the website. According to the Court, this cannot reasonably be required from Marktplaats.

As Marktplaat has an efficient notice and takedown procedure, Marktplaats has according to the Court met what may be expected from it. This is in line with the obligation on an internet service provider in the Netherlands. According to Dutch Courts, an internet service provider must remove indisputably unlawful information from a website only after the provider has been informed about the infringement. This means that the provider does not need to look for infringing information itself.

Marktplaats need not go any further and this does not change because Stokke incurs considerable costs screening the Marktplaats website and has to notify repeated infringements to it. The Court’s view is that it is obvious that Stokke and not Marktplaats must incur these costs. For the recovery of these costs, Stokke must claim from the infringers.

In order to recover these costs, Stokke would have to have the name and address data of the infringers. The second document on this case deals with this. The Dutch Supreme Court determined last year that internet service providers must provide the wronged parties with the name and address data of possibly unlawfully acting website owners known to them. Stokke now asserts that Marktplaats too is bound to provide data of infringing advertisers to Stokke even though it is not an internet service provider. It is very significant that the Court could assess that for a safe trade an e-mail address is not enough and Marktplaats may be obliged with regard to Stokke products to at least collect the name and address data of the provider of Stokke products. Whether such an obligation rests upon Marktplaats will be determined by the Court in its final judgment. If the Court does impose this duty on Marktplaats, the consequences for e-commence in general and classified advertising websites in particular would be huge.