Dutch ISP Lycos

22 March 2006

Gerrit-Jan Zwenne

On 25 November 2005, the Dutch Supreme Court (“Hoge Raad”) rejected Lycos’ ‘appeal in cassation’ in the so-called Pessers case and decided that Lycos, an Internet service provider (ISP), must provide Pessers with the personal data of a subscriber that had wrongfully accused Pessers of fraud on its website.

The case was initiated in 2003 by the stamp dealer and lawyer, Augustinus Pessers, against Lycos. Pessers sold stamps on eBay. After he had been accused of fraud on a free website of a Lycos customer (http://members.lycos.nl/stopthefraud), he initiated preliminary relief proceedings. In these, he claimed that the accusation had to be removed from the website. Furthermore, he claimed that Lycos should provide him with the name and address of the subscriber that was responsible for the website.

Lycos argued that it did not have to provide the subscriber data, inter alia, because this would be contrary to the Electronic Commerce Directive (2000/31/EC) (‘the Directive’). That Directive provides that a so-called hosting provider (i.e. an ISP that hosts websites of its subscribers) is not liable for the information published on the website hosted by it, provided (a) that the provider does not have actual knowledge of illegal activity or information, or (b) that the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the information.

According to Lycos this implies that, being a hosting provider, it cannot be obliged to provide subscriber data to Pessers. They argue that the Directive provides for an exclusive arrangement regarding the hosting provider’s liability: such a hosting provider can only be liable if he does have actual knowledge of the unlawful information and has refused to remove that information. As it was established that the information published on the website was not indisputably unlawful, Lycos argued that it was not liable and consequently could not be obliged to provide the subscriber data. In addition, Lycos argued that the provision of subscriber data would be contrary to the subscriber’s freedom to spread information anonymously and that the subscriber’s information should be protected.

The Supreme Court did not agree with this. In the Court’s opinion the announcement on the website did not have to be removed if the accusation was not indisputably unlawful. Nevertheless, that does not mean that the subscriber data does not have to be provided. If it is sufficiently plausible that information on a website could be unlawful, Lycos acts unlawfully towards Pessers by not providing the subscriber data on his request. In this respect, the Court also considered that the Directive requires that court actions allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

The Supreme Court’s decision has lead to some discussion among Internet lawyers in the Netherlands, as it means that ISPs should not only assess whether a web publication is indisputably unlawful, but also whether such a publication could be unlawful. That is, obviously, troublesome for ISP’s, who in principle don’t know and don’t want to know the contents of the information distributed via their networks, servers and the like. However, the Supreme Court does introduce some restrictions. For instance, it asserts with some emphasis that: “There is no general rule that anyone who has knowledge of particular information is obliged to provide this to the person who has a reasonable interest in the unknown information being communicated to him.” Furthermore, the Court remarks that its decision is tailored to the present case. Moreover, the Supreme Court also assesses that “the interest of freedom of speech may not be passed over lightly, including in particular cases the interest of the website owner to utter its opinion anonymously.”

It can be concluded from this that the Supreme Court did want to restrict the scope of its decision. Nevertheless, it is expected that the decision will also have consequences, for instance, in the tracking and prosecution of internet users exchanging music and films via p2p-networks. In any case, the interest group of the copyright owners, the Stichting Brein, which inter alia took legal action against KaZaA, is delighted by the decision. It is of the opinion that this will make it much easier to trace address data of Internet users who are suspected of illegal file-sharing.

The Supreme Court decision (in Dutch) can be downloaded from http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&ljn=AU4019&u_ljn=AU4019