IP and IT Law Bytes: Defamation: intermediary defences

30 October 2014

The European Court of Justice (ECJ) has provided guidance on the intermediary defences in the E-Commerce Directive (2000/31/EC) (the Directive) in relation to a defamation claim.

Background

Articles 12, 13 and 14 of the Directive contain exemptions from liability for intermediary service providers that provide information society services by acting as a mere conduit, caching or hosting (the exemptions).

“Information society services” is defined at Article 2(a) of the Directive (Article 2(a)).

Facts

P brought a defamation claim against a Cypriot newspaper, O, and also its editor-in-chief and a journalist, in relation to articles published online.

The national court referred questions on the interpretation of Articles 12 to 14 of the Directive to the ECJ.

Decision

The ECJ held that the exemptions did not apply to O.

The concept of information society services in Article 2(a) covered online information services for which the service provider is remunerated, not by the recipient, but by income generated by advertisements posted on a website. Here, the Directive did not preclude the application of national rules of civil liability for defamation to information society service providers.

However, the exemptions did not apply to a newspaper publishing company that operated a website on which the online version of a newspaper was posted, and which was remunerated by income generated by commercial advertisements posted on the website, as it has knowledge of the information it posts and exercises control over that information, whether or not access to the website was free of charge. The exemptions only applied to intermediary service providers and to activities of a merely technical, automatic and passive nature.

The exemptions could apply in proceedings between individuals relating to civil liability for defamation. However, Articles 12 to 14 did not allow information society service providers to oppose the bringing of legal proceedings for civil liability against them. The articles did not concern the conditions in which the judicial remedies for civil liability could be exercised against those service providers in the absence of specific EU provision. Those conditions were the sole competence of EU member states. The Directive could not, in itself, create obligations on the part of individuals and could not be relied on against those individuals.

Comment

The decision that a newspaper would not be allowed to rely on the intermediary exemptions in the Directive to avoid liability for articles it had posted on the internet, as opposed to user-generated content or readers’ comments, is unsurprising. The decision also confirms existing principles (Google France and Google C-236/08 to C-238/08) that Directive defences operate as a separate shielding layer above substantive national law. It also applied existing law that directives do not have direct effect where a member state has failed to transpose the law at all, although this may give rise to a Francovich claim for damages against the member state (Francovich v Italy C-6-6/90 and C-9/90).

Case: Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and others C-291/13.

First published in the November 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.

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