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08 July 2010
The Supreme Court recently issued two judgments on the interpretation of the 'actual knowledge' concept set out in Article 16 of the Information Society Services and Electronic Commerce Law (34/2002), which transposed into Spanish law the EU Information Society Directive (2000/31/EC), in order to provide exemptions to service providers that carry out data hosting services.
Article 16 states that service providers which host information provided by a recipient of the service will not be considered to be liable for the information stored at the request of that recipient, provided that the provider (i) does not have actual knowledge that the hosted information or activity is illegal or damages a third party's goods or rights, and may lead to compensation for damages, or (ii) on obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
According to the law, the provider has actual knowledge of the referred facts once a competent authority has declared the data illegal and has ordered its withdrawal or refused access to the data, or has declared the existence of damages, and the service provider knew of this decision, without prejudice to the procedures of detection and content removal that service providers implement under voluntary agreements and other means of actual knowledge that may be established.
In a judgment of May 18 2010 the Supreme Court exempted a service provider from liability for complaints made by the users of a website that it hosted. The court considered that its behaviour was affected by the exemption regulated in Article 16 of Law 34/2002.
A lawyer brought an action against Ruborisko, SL, the owner of a website called 'quejasonline' (in English, 'complaintsonline'), where users published complaints about different topics. In particular, the lawyer asked for Ruborisko to be held liable for a damaging comment on the website regarding one of the insurance companies for which the lawyer worked. It appeared as though the comment had been written by the lawyer, who in fact had nothing to do with it.
Therefore, the question was whether Ruborisko, as the data-hosting service provider, was responsible for the comments hosted on its website by third parties. The first instance court upheld the lawyer's claim, considering that Ruborisko had committed illegal damage to the lawyer's honour. This judgment was confirmed by the Court of Appeal.
The Supreme Court revoked the previous judgments, ruling that Ruborisko was not responsible for the comment as it enjoyed the exemption from liability set out in Article 16 of the law. The court reasoned that Ruborisko had no reasonable actual knowledge of the fact that the illegal information hosted by a third party on its website was not actually published by the lawyer, but by another person using his name. In addition, the court considered that Ruborisko's behaviour was expeditious, according to the law, because it withdrew the conflicting comment immediately once it received the lawyer's complaint.
In contrast, in an earlier judgment on the matter issued on December 9 2009, the Supreme Court held a data-hosting service provider liable for damaging comments hosted on its website. In that case the court held that taking into account the circumstances of the case, the service provider was not affected by the exemption regulated set down in Article 16 of the law.
Sociedad General de Autores y Editores (SGAE), an organization that manages authors' and editors' copyrights and its president brought a claim against Asociacion de Internautas for hosting on its website www.internautas.org certain domain names considered damaging to SGAE: 'putasgae.org' (in English, 'f***ingsgae.org') and 'antisgae.internautas.org'. Both contained damaging comments posted by third parties regarding SGAE's management. The first instance court held Asociacion de Internautas liable because it hosted the damaging domain names and the damaging comments contained thereon. The Court of Appeal confirmed the first instance judgement.
The Supreme Court also confirmed the lower courts' judgments and held Asociacion de Internautas liable. The court stated that the exemption set out in Article 16 of the law did not apply in this case as Asociacion de Internautas had actual knowledge of the infringing behaviour - the court held that the hosting of the domain name 'putasgae.com' was an adequate means of knowing about the illegality of the data. In the court's opinion, the actual knowledge of the hosting service provider does not occur only once a competent authority has declared the data illegal. It can also be deduced from "other adequate means", since the law also refers to these other means without prejudice to the competent authorities' declaration. Thus, the Supreme Court considered that the hosting of these inappropriate domain names was such an adequate means of attributing actual knowledge to the service provider of the illegal content. Consequently, the court declared Asociacion de Internautas to be liable.
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