Intermediary liability

Andres GuadamuzUniversity of Sussex

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Stories

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Ages of liability

• Everyone is liable! BBS / Early Internet

• Limited liability: DMCA, E-Commerce Directive

• Litigate! Viacom v Youtube

• Filtering and Blocking: iiNet, SABAM, Pirate Bay

• A new golden age of liability: RTBF, Google Spain

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The clue is in the DMCA

• (a): Transitory Digital Network Communications(connectivity providers)

• (b): System Caching (ISPs or services like Akamai)

• (c): Information Residing on Systems or Networks At Direction of Users (web and file hosts)

• (d): Information Location Tools (search engines)

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The age of blocking

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Roadshow v iiNet

• iiNet is an Australian internet service provider that was sued in 2008 for secondary copyright infringement by film companies.

• iiNet is interesting precisely because it shows what the legal landscape may look like without safe harbours.

• “…while the evidence supports a conclusion that iiNet demonstrated a dismissive and, indeed, contumelious, attitude to the complaints of infringement by the use of its services, its conduct did not amount to authorisation of the primary acts of infringement on the part of iiNet users.”

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Scarlet v SABAM

• Belgian collective rights management v ISP.

• SABAM alleged Tiscali’s users were illegally downloading works in its catalogue from the Internet via P2P networks, and wanted Tiscali to install filtering software in its network that would curb further infringement.

• The first ruling agreed with the claimants based entirely on expert reports.

• Appeal made it all the way to ECJ. 9

UK blocking orders

• In Twentieth Century Fox & Others v Newzbin English courts have allowed the creation of a blocking regime of Internet sites involved in infringement of copyright.

• Court finds users of site are engaged in copyright infringement, and serves injunction to ISPs so that the site is blocked to all users.

• The PirateBay, KAT, H33T, Fenopy, SolarMovie and TubePlus, just to name a few.

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The age of forgetting

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Google Spain C‑131/12

• Data subject request to remove links (Art 14(a) DPD)

• “In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter.” 12

Forgetting as THE intermediary subject of the future

• By July Google had received 70,000 requests on 250,000 web pages.

• Google granting majority of RTBF requests

• Amsterdam Court had to decide on application of Google Spain: “The [Google Spain] judgment does not intend to protect individuals against all negative communications on the Internet, but only against ‘being pursued’ for a long time by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ expressions.”

• So why is Google granting so many of the requests?….13

Private right to be forgotten (if you have the money)…

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Questions

That need answering

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Thanks

a.guadamuz@sussex.ac.uk

@technollama

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