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Spain: Forum held not liable for its users’ comments

June 13, 2010

The Spanish Supreme Court recently handed down an interesting judgment on the liability of an Internet forum for third-party comments (Judgment number 316/2010, from the Civil Chamber of the Supreme Court, dated 18 May 2010; the text in Spanish is available here).

The defendant was Ruboskizo, S.L., the owner of the forum which is intended for people to complain online about different topics.

The case deals with a comment posted by an unidentified user, which harmed the reputation of the plaintiff—a Valencian lawyer. When this person knew about the post, he immediately notified it to Ruboskizo, who quickly removed it. However, Ruboskizo refused to reveal the identity of the poster.

The aggrieved party filed a lawsuit against Ruboskizo, who was held liable by the Court of First Instance. The defendant appealed, and the Court of Appeals (Audiencia Provincial de Valencia) affirmed the ruling. Ruboskizo then appealed to the Supreme Court, alleging that the Court of Appeals failed to apply the safe harbour scheme laid down in the E-Commerce Directive (arts. 14 and 15) and in the Spanish transposition (Law 34/2002 of 11 July, on Information Society Services and Electronic Commerce).

The Supreme Court reversed the ruling, holding that the Court of Appeals didn’t take into account those provisions—and thus didn’t consider whether the defendant qualified for the exemption from liability. The Supreme Court found that Ruboskizo didn’t have actual knowledge or awareness of facts or circumstances revealing the illegal nature of the comment, and that when it was notified about that, diligently took down that post.

This is the second time the Supreme Court deals with the E-Comm Directive hosting safe harbor. What is interesting about this ruling—among other things—is that the Court clearly holds that this safe harbor applies to a forum—as it is hosting the comments sent by users.

A comment in Spanish can be found here

3 Comments leave one →
  1. June 14, 2010 2:08 pm

    Ad “This is the second time the Supreme Court deals with the E-Commerce Directive hosting safe harbor.”

    Which case was the first time?


  2. Miquel Peguera permalink*
    June 16, 2010 2:40 pm

    Hi Martin,
    The first case was SGAE v. Asociación de Internautas, decided by the Spanish Supreme Court on 9 December, 2009. It held that the defendant did not meet the conditions for the hosting safe harbor, and thus confirmed the lower court decision holding the defendant liable of libel.
    Post in Spanish (sorry about that!):


  3. June 16, 2010 8:00 pm

    Thank you,
    it was definitely useful!
    All the best,

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