Wednesday, June 9, 2010

The First Czech Ruling Involving the Hosting Safe Harbour

As unbelievable as this may sound, Slovakia and Czech republic still does not have any case law on the liability of ISPs (at least as far as I know). Fortunately, this is about to change. City Court of Prague delivered it´s first instance ruling (10 Cm 47/2009-39) concerning the liability of ISP for the third party comments on it´s article (hosting). The case was brought to Huťko´s attention by Dr. Janák from the Faculty of Law of University West Bohemia in Pilsen (big thanks for reporting to the community).

The dispute is about an estate agency claiming the interference with it´s goodwill by publishing the third party comments below respondent´s article and maintaining them after the proper notification from the claimant. Hence dispute is more about the free speech v. goodwill rights than tremendous peculiarities of information society service providers liability.

Claimant demanded 50,000.- CZK (equal to 1,950.- EUR) and the removal of the said discussion thread. The court ruled that the entire discussion thread should be removed, but dismissed the claim for the adequate satisfaction in money. To me it´s quite disproportional in a way that not the whole thread was infringing in this case. On the other hand, I don´t agree with the respondent that this ruling extends the liability of the ISP in some, to me unspecified, way. Basically this is exactly what each auction site or e-shop have to deal with when enabling it´s users to submit review of the product or service.

Concerning the free speech v. goodwill analysis it would be probably much longer article and I still have a pending state exam :)

Said claim is based on the section 19b of Czech Civil Code.

(1) Legal entities shall have their name; the name must be specified at the moment of their establishment.
(2) Should the name of a legal entity be used unlawfully, the legal entity may demand with a court that the unlawful user omits the use and remove irregular state; the legal entity may
also demand an adequate satisfaction that may be required even in money.
(3) The provision of paragraph 2 shall adequately apply to an unlawful infringement of goodwill of a legal entity.
The ruling was already appealed to the High Court (please note this is not the Supreme Court).

No comments: