Monday, July 15, 2013

New Preliminary Reference on Safe Harbors From Cyprus

EU Law Radar reports new preliminary reference on eCommerce Directive safe harboring system - Papasavvas C-291/13. The questions arose in a case dealing with liability for libel committed online. 

The claimant in this case, Mr Papasavvas, sues for damages in a Cypriot court because he fells that an article in the defendant’s printed newspaper, which was also available on the newspaper’s website, is defamatory. As a defense, the newspaper claims that Cypriot libel law does not apply ‘on-line’, which is contrary to EU law [not sure what that really means]. And also, according to EU Law Radar, that without the ability to obtain a definitive judgment from the courts, granting an interim injunction would have disproportionate effects on the freedom of speech [does not look like an intermediary liability case though].

According to the Curia website, the questions are as follows:

Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31/EC?
I would say this is self-evident and eDate Advertising C-509/09 was quite clear confirmation of this.

If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31/EC, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?
Again, I would say it is self-evident that yes. Is there some catch I am not aware of?

Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31/EC relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?
 I am not sure if I get this point .. anybody can help?

Do the definitions of ‘information society service’ and ‘service provider’ in Article 2 of Directive 2000/31/EC and Article 1(2) of Directive 98/34/EC, as amended by Directive 98/48/EC, cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?
Yes. After all, the wording is reduced to 'normally provided for remuneration' just to fit CJEU freedom of services case law (see recital 19). Newspapers definitely fall into this definition.

Bearing in mind the definition of ‘information service provider’, laid down in Article 2 of Directive 2000/31/EC and Article 1(2) of Directive 98/34/EC, as amended by Directive 98/48/EC, could the following, or any of them, be regarded as a ‘mere conduit’ or ‘caching’ or ‘hosting’ for the purposes of Articles 12, 13 and 14 of Directive 2000/31/EC:

a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper’s staff and/or freelance journalists;

a website which provides (a) or (b) above for a subscription?
If the libelous content in question is produced by newspaper’s staff and/or freelance journalists, which is no doubt own content of the newspaper, then safe harbors are inapplicable as the information is not provided by 'a recipient of the service'

All in all, the case does not seem to be very exciting I would say. But return back for updates. I will ask my Cypriot colleague about some further details.

4 comments:

Anonymous said...

I have been reading the same reference for several times now and just cannot gasp, where is the legal uncertainty or question...

I was told that this case could sort out the "DELFI MESS" (http://inforrm.wordpress.com/2013/10/17/who-will-sort-out-the-delfi-mess-graham-smith/#more-22984)

And I got even more confused, since I fail to see any similarities whatsoever - the Papasavvas case does not consider the limited liability of mere conduits since the question is simply about traditional publisher's liability for online content...

Answer to that should be quite simple...

Or am I really-really missing something...

Karmen Turk

Huťko said...

Hi Karmen,

not sure either what Graham meant there.

If you want, I can ask him.

Martin

Graham Smith said...

The possibility of Papasavvas sorting out the 'Delfi mess'is now superseded of course by the appeal to the Grand Chamber in Delfi itself.

However what I had in mind was that, however strange the Papasavvas questions and apparently obvious the answers (which I agree about), the Papasavvas questions are framed as being about the safe harbours, including hosting liability. So the CJEU could perhaps have taken the opportunity to make clear (as an aside?) that the Estonian Supreme Court was wrong about lack of ECD hosting protection in Delfi. A long shot, I know...

Huťko said...

Graham,

oh, I see; would you love see that reflection, but I am quite sceptical ;)

M.