The Spanish Supreme Court has held an internet service provider liable for hosting defamatory material provided by a third party, on the basis that the illegality was apparent from the facts and circumstances including the domain name of the hosted website. The Court directly applied the EU Electronic Commerce Directive, ignoring Spanish legislation which required a court finding of illegality before a host could become liable without actual knowledge of the illegality.
The Asociación de Internautas (AI), an internet service provider, was sued in defamation by the Sociedad General de Autores y Editors de España (SGAE), Spain’s most important authors’ rights collecting society due to AI storing two websites on its servers that defamed both the SGAE and its President.
At the first and second instance hearings, the courts ordered AI to cease damaging SGAE’s reputation, suppress all defamatory material hosted on its servers and compensate SGAE with a payment of EUR 18,000. AI appealed to the Supreme Court arguing that it was not liable on the grounds that it did not have actual knowledge of the illegal nature of the stored information and that its behaviour was neutral in relation to that information.
According to Article 16 of the Spanish E-Commerce Act 34/2002 (the Act), Spain’s implementation of the Electronic Commerce Directive, if an ISP does not have actual knowledge and does not take part in the control of the information, it is not liable for the illegality of the information hosted. Nevertheless, an ISP is considered liable when a competent authority (e.g. a court) determines the illegality of the information hosted, without prejudice to: (1) procedures for detecting and removing content applied by providers by virtue of voluntary agreements, and (2) other means of actual knowledge which could be established.
In order to determine AI’s liability, the Supreme Court had to first determine whether the requirements set out in the Act were satisfied in light of the Directive, by examining whether AI, as the intermediary service provider:
was merely passive or automatic (Article 14.1(a) and Recital 42 of the Directive), or
acted with due diligence in case of knowing the illegal content (Article 14.1(b) and Recital 48 of the Directive), or
consciously collaborated with the target platform of services and provider of contents (Article 14.2 and Recital 44 of the Directive).
Finally, on 9 December 2009, the Supreme Court decided that AI was liable for hosting illegal information. The judgment was not based on the requirements of actual knowledge and neutrality stated in Article 16 of the Act, but instead, by directly applying Article 14 and Recital 48 of the Directive, which state that ISPs are liable for the illegal information hosted if they are aware of facts or circumstances from which the illegal information is apparent.
The Supreme Court further argued that the liability of ISPs should not be limited to merely having actual knowledge (as is stated in the Act) because such an interpretation would establish a very high threshold for the application of the liability system to ISPs. Thus, the Directive would not restrict the suitable means of acquiring actual knowledge.
Besides the fact that Article 16 of the Spanish Act mentions the possibility of acquiring actual knowledge by other means which could be established, the judgment relies on the awareness of facts or circumstances from which the illegal information is apparent (though notably this is not a condition incorporated into Spanish legislation) to consider AI liable. Given that the domain name itself (www.putasgae.org) was clearly slanderous of SGAE, the Court believed that this fact (taking also into account the context of public conflict between both parties) was enough ex re ipsa to establish awareness of the illegal content and, consequently, render AI liable for the defamation.
AI also requested the Supreme Court to make reference to the European Court of Justice concerning the interpretation of Article 14 of the Directive. Despite the fact that the question was raised in a case pending before a court against whose decision there is no appeal under national law, the Supreme Court did not refer the matter to the European Court of Justice.
The Supreme Court judgment is considered very significant because the decision to hold an ISP legally responsible for the content of information marks the introduction of a new interpretation of ISP liability in Spain. Moreover, although the outcome of this decision cannot yet be considered as a binding doctrine, this new interpretation will still need to be taken into account in cases such as copyright infringements on the internet. Meanwhile, the AI has announced that it will file a complaint with the European Commission.