Monday, August 1, 2011

Slovakia: Webhosting provider ordered to stop publishing certain infornation on the hosted website

On 19 of May 2011, District Court Bratislava II. („Okresný súd Bratislava II.“) issued preliminary injunction against well-known Slovak NGO Aliancia Fair-Play and its hosting provider Websupport, ordering them both to stop publishing certain information concerning Plaintif on the website www.znasichdani.sk (meaning „from our taxes“). Subjected website is a third sector project run by said NGO that was just recently awarded first prize within Open Data Chalenge – the European biggest open data competition - being named as the best application. The website basicaly agregates all the data from publicly available Businesss Register of Slovak republic and Public Procurement Bulletin. It allows you to find all state commissions for the chosen company from Business Register. Moreover, the website is able to display all commissions for other companies related to the same name and address as your chosen company. The project „Znasichdani.sk“ thus aims to show the public which entrepreneurs and companies are successful in securing contracts with the state in public procurements. However the project is not 100 % accurate when showing the results because, as project explains on its website:

Search returns all companies for a given name and surname. This doesn’t mean they are all related to a specific person. A possibility of matching names has to be taken into account. From the list of companies displayed in search results you have to choose one company that you are certain is related to the person you are looking for. This is necessary because Business Register can only determine a person's unique identity in relation to a certain address and company. If ten companies are shown in search results, they don’t necessarily have to be related to the same John Carrot. It may be the case of ten different John Carrots being listed in the Register’s database.

The Plaintiff, in this case is a natural person claiming that said project infringed her personality rights by combining several true data in a way suggesting that she is an entrepreneur earning huge income on the tenders, while in fact, she is only a management official at the company participating at tenders. Plaintiff therefore applied for preliminary injunction. District Court Bratislava II. (sp. zn. 14C/89/2011) granted injunction and ordered following:

Aliancia Pair-Play shall desist from publishing data concerning Plaintiff - his title, fist and last name - anywhere and anyhow on the website www.znasichdani.sk in a such a way that directly connects the Plaintiff with the expression of the financial benefit gained from public procurement, until the date when decision on the case merits will enter into the effect;

Websupport as a webshosting provider shall take measures to prevent access of the public to data concerning Plaintiff - his title, fist and last name - anywhere and anyhow on the website www.znasichdani.sk in a such a way that directly connects the Plaintiff with the expression of the financial benefit gained from public procurement, until the date when decision on the case merits will enter into the effect;

Plaintiff claimed to soon file an action on case merits seeking a financial compensation against both Defendants; To Huťko’s knowledge, Aliancia Fair-Play appealed this preliminary injunction on the basis of impossibility to apply the court order as it does not specify what exactly they should do. Huťko wonders why on the earth shall the webhosting provider take steps in order to enforce the decision against the website owner. In light of previous Supreme Court cases (in particular Becherovka case), Huťko deems this to be a measure which is not necessary to obtain requested protection. Even though webhosting provider can technicaly take such measures, it seems to Huťko inappropriate address him in case where the Plaintiff could be indetified, sued and obliged to carry out all what is neccessary. Huťko is very excited to see the appeal of this preliminary injuction, but also the case in the main proceedings. Websupport can easily invoke hosting safe harbour defence, even though he was previously notified of this allegedly illegal conduct of Aliancia Fair-Play. Even in light of L’Oreal v. eBay C-324/09 (to blog about soon) or Google France C-236/08, he shall be still covered in Huťko‘s opinion. I believe that prior notice did not amount to actual knowledge as disputited infringement is not „straighforward enough“ (in this regard Huťko disagress with Prolux findings, which I will blog about soon). To put any onus on webhosting provider in case of highly controversial and definitely not settled infringement is not very reasonable to Huťko. Concerning the personality rights infringement claim, Huťko believes in application of several important and recent decisions of Constitutional Court.

European Information Society Institute will consider amicus curie in this case as question of liability of both Defendats are of high importance for the future cases;

1 comment:

Web hosting forum said...
This comment has been removed by a blog administrator.