A collection of fragments of understanding in the pursuit of deeper questions.
ISP Liability - "Mere private law rules?" The origins of ISP Liability in the US: Section 230 CDA: a free speech standpoint. The DMCA and the influence on the European Union Legal Framework. The evolution of Internet Services: a shifting paradigm of liability?
Consequences on free speech: disinformation and hate speech as "stress test". Service Providers are not delivering a content:
Content Providers, are those providing the content and writing information in the web. The origins of ISP Liability - Pre-Section 230 CDA decisions.
Cubby vs CompuServe CompuServe was an Internet Service Provider, which hosted an online news forum. Cubby alleged that CompuServe was the publisher of third-parties defamatory statements, therefore it should have been held liable. CompuServe did not dispute the defamatory nature of the content. However, during the trial no evidence was presented showing that CompuServe either was aware or should have been aware of the existence of such defamatory content. The Court excluded CompuServe liability, stating that "CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so". A computerized database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower (i.e. stricter) standard of liability to an electronic news distributor than that which is applied to a public library, book store or newsstand would impose an undue burden on the free flow of information: the appropriate standard of liability to be applied is whether CompuServe knew or had reason to know of the allegedly defamatory statements.
Stratton Oakmont vs Prodigy Serv. Stratton Oakmont argued that Prodigy should be considered a "publisher" of anonymous statements posted on its bulletin board. Under the common law of defamation, if Prodigy were considered a publisher, it could be held liable for the statements of the unknown user. Conversely, if it were found to be merely a "distributor," it could not be held liable unless it knew or had reason to know about the allegedly defamatory statements. The plaintiffs pointed to Prodigy's "content guidelines," which stated rules that users were expected to abide by, a software screening program which filtered out offensive language, and the employment of moderators for enforcing the content guidelines. The Court found that such representations and policies were sufficient to treat Prodigy as a publisher The Court distinguished the case from that involving CompuServe, which was found merely to be an "electronic for-profit library" or repository and thus a passive distributor. In particular, the court pointed to Prodigy's creation of an "editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions." The court noted, however, that bulletin boards should normally be considered distributors when they do not exercise significant editorial control, as Prodigy had done.
CDA 230 - The most important law protecting internet speech Interactive Computer Service, any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. Information Content Provider, any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
The origins of ISP Liability - The Communications Decency Act (1996) "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". In passing the Communications Decency Act of 1996 the House explicitly stated its intent to overturn the result reached in the Prodigy case. It precludes courts from claims that would place a computer service provider in a publisher's role. Lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone or alter content - are barred.
[...] No provider or user of an interactive computer service shall be held liable on account of
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
The origins of ISP Liability - After the CDA Zeran vs America Online, Inc. Zeran brought an action against AOL, arguing that it unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter. The district court granted judgment for AOL on the grounds that § 230 CDA bars Zeran's claims. Zeran appealed, arguing that § 230 leaves intact liability for interactive computer service providers who possess notice of defamatory material posted through their services. § 230, however, plainly immunizes computer service providers like AOL from liability for information that originates with third parties. Congress' purpose in providing the § 230 immunity was evident: The amount of information communicated via interactive computer services is staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.
Reno vs American Civil Liberties Union The CDA also criminalized the online distribution of «obscene» or «indecent» materials to any person under 18 Held: Unconstitutional. The restrictions were too vague and lacked the precision required to limit free speech: the concepts of «indecent» and «patently offensive» content were not appropriately defined. «The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve». «It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not reduc[e] the adult population to only what is fit for children». «Radio and television, unlike the Internet, have received the most limited First Amendment protection because warnings could not adequately protect the listener from unexpected program content». «On the Internet, the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material».
Copyright Enforcement and ISP Liability - The rise of the notice-and-take down regime The Digital Millennium Copyright Act A service provider shall not be liable for monetary relief, or for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider:
ISP Liability in Europe - The E-Commerce Directive Policy to enhance Freedom of Expression
Two pillars:
Mere Conduit Providers (Art. 12) The service provider consists of the mere transmission of information or the mere provision of access to a communications network. The ISP is not liable for the information transmitted if it:
Caching Providers (Art. 13) The service provided consists of the temporarily storage of information. Liability Exemptions apply only if:
Hosting Providers (Art. 14) The service provided consists of the permanent storage of information
Liability Exemptions apply only if:
The Second Pillar, Absence of a General Obligation to Monitor (Art. 15) Member States shall not impose a general obligation on providers to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
European and National Trends, the Evolving Liability Regime Applicable to ISP Which assumptions behind the E-Commerce Directive (and Section 230 CDA)? Recital 42: «The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored».
The View of the Eu Court of Justice - Active vs Passive Providers Google France In the event that the use of a keyword reproducing or imitating registered trademarks does not constitute a. use which may be prevented by the trade mark proprietor, may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31, so that the provider cannot incur liability before it has been informed by the trade mark proprietor of the unlawful use of the sign by the advertiser? The restriction on liability set out in Article 14(1) of Directive 2000/31 applies to cases '[w]here an information society service is provided that consists of the storage of information provided by a recipient of the service' and means that the provider of such a service cannot be held liable for the data which it has stored at the request of a recipient of that service unless that service provider, after having become aware, because of information supplied by an injured party or otherwise, of the unlawful nature of those data or of activities of that recipient, fails to act expeditiously to remove or to disable access to those data.
The legislature defined the concept of 'information society service' as covering services which are provided (i.) at a distance, (ii.) by means of electronic equipment for the processing and storage of data, (iii.) at the individual request of a recipient of services, and (iv.) normally in return for remuneration. Regard being had to the characteristics of the referencing service at issue in the cases in the main proceedings, the conclusion must be that that service features all of the elements of that definition.
In addition, a referencing service provider transmits information from the recipient of that service, namely the advertiser, over a communications network accessible to internet users and stores, that is to say, holds in memory on its server, certain data, such as the keywords selected by the advertiser, the advertising link and the accompanying commercial message, as well as the address of the advertiser's site. It is further necessary that the conduct of that service provider should be limited to that of an 'intermediary service provider' within the meaning intended by the legislature; it follows from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established in that directive cover only cases in which the activity of the information society service provider is 'of a mere technical, automatic and passive nature', which implies that that service provider 'has neither knowledge of nor control over the information which is transmitted or stored'.
The mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability.
Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.
By contrast, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant.
L'Oreal vs eBay Article 14(1) of Directive 2000/31/EC must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored. The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace has not played an active role, it nonetheless cannot, in a case which may result in an order to pay damages, rely on the exemption from liability if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realized that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously.
*The View of the EU Court of Justice - Ex Ante Monitoring Obligations Scarlet vs SABAM SABAM is the Belgian collecting society which had gone to court asking for the ISP, Scarlet, to monitor and block peer-to-peer transfers of music files which it represented. In 2007, a Belgian court ordered Scarlet, an ISP, to bring to an end the copyright infringements of content of which the applicant was the rightholder, by making it impossible for its customers to send or receive in any way files containing a musical work in SABAM's repertoire by means of peer-to-peer software.
Does EU law permit a national court to issue an injunction against intermediaries whose services are used by a third party to infringe copyright, to order an ISP to install, **for all its customers, in abstracto (preventing measures) **and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files?
Such an injunction imposed on the ISP to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31.
In adopting such injunction, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.
Facebook Austria vs Eva Glawischnig-Piesczek Ms. Eva Glawischnig-Piesczek, who was a member of the Austrian National Council, chair of the parliamentary party die Grünen (the Greens) and the party's federal spokesperson, applied to the Austrian courts for an injunction to be issued ordering Facebook to bring to an end the publication of a defamatory comment.
As Facebook did not react to her request for that comment to be deleted, Ms. Glawischnig-Piesczek sought an order requiring Facebook to cease publication and/or dissemination of photographs of Ms. Glawischnig-Piesczek if the accompanying message disseminated the same allegations as the comment in question and/or 'equivalent content'.
The Oberster Gerichtshof (Supreme Court of Austria), before which this case was ultimately brought, considered that the statements at issue were intended to damage the reputation of Ms. Glawischnig-Piesczek, to insult her and to defame her.
Having been called upon to adjudicate on the question whether the injunction can also be extended, worldwide, to statements with identical wording and/or having equivalent content of which Facebook is not aware, the Oberster Gerichtshof requested the Court of Justice to interpret the E-Commerce Directive in that context. Ruling: a Member State is not precluded from stopping and preventing an illegal activity, which a Member State's court ruling has considered as such and the prohibition of monitoring obligations does not apply to a specific case.
Such a specific case may be found in a particular piece of information stored by a social network provider at the request of a certain user, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal. Given that a social network facilitates the swift flow of information stored between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.
In those circumstances, it is legitimate for the court having jurisdiction to require a host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.
In order for an injunction which is intended to bring an end to an illegal act and to prevent it being repeated, to be capable of achieving those objectives effectively, that injunction must be able to extend to information, the content of which, whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal. Otherwise, the effects of such an injunction could easily be circumvented by the storing of messages which are scarcely different from those which were previously declared to be illegal, which could result in the person concerned having to initiate multiple proceedings in order to bring an end to the conduct of which he/she is a victim.
Article 15(1) of Directive 2000/31 implies that the objective of an injunction consisting, inter alia, of effectively protecting a person's reputation and honour, may not be pursued by imposing an excessive obligation on the host provider.
Therefore, it is important that the equivalent information contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.
In the view of the CJEU, automated technologies could then seek this information, which does not require further analysis and falls within the specific characteristics of the injunction. Directive 2000/31 does not make provision for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive: accordingly, it does not preclude those injunction measures from producing effects worldwide.
Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from:
The View of the European Court of Human Rights - A more human rights-based standpoint Delfi vs Estonia (2015) Imposing an online news portal to pay damages for having failed to promptly remove defamatory comments posted by anonymous users does not amount to a violation of right to freedom of expression entrusted to Art. 10 of the ECHR.
MTE/Index.hu vs Hungary (2016) MTE and Index.hu Zrt: two Internet news portals in Hungary which published the same article, criticizing two real-estate websites managed by a unique company. In both the news portals, users wrote offensive comments against the real-estate company, which sued MTE and Zrt. Hungary's supreme court upheld the decisions of the lower courts, declaring MTE and Zrt liable for having permitted such offensive and unlawful comments to be published. Ruling: the ECHR stated that Hungarian courts did not properly balance the right to good reputation and the protection of freedom of expression It listed a series of criteria which made it come to that conclusion: