New Paper: Privately Litigated Disconnecting Injunctions
Martin Husovec and I have just finished a paper titled Privately litigated disconnecting injunctions, which is available at the ssrn website. It deals with a particular type of injunctions that rights holders might apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, which consist of enjoining an ISP from providing internet access to one of its users, allegedly engaging in copyright infringement. A case already decided in Spain granting the disconnecting injunction serves us as a study case to assess the problems this type of injunctions face. We deal particularly with the serious problems these injunctions raise regarding their compatibility with the EU Charter of Fundamental Rights.
We conclude as follows:
Privately litigated disconnecting injunctions requiring ISPs to cease providing internet access to one of its subscribers raise serious concerns from the standpoint of their compatibility with the EU Charter of Fundamental Rights and the European Convention of Human Rights. For these injunctions to be compatible with the Charter and the Convention, they should respect a number of key requirements. First, as discussed in Part III(1), the concerned individual should be granted the opportunity to defend his or her rights in court. To this end, the plaintiffs would need to previously identify that user, so that he or she could be included in the lawsuit. Second, as shown in Part III(2), some injunctions, particularly those without time limits, those targeting all national ISPs, or blocking also legitimate communications, might qualify as a criminal sanction and hence be unavailable due to the requirement of a stricter legal basis for criminal charges. Third, as explored in Part III(3), the test of proportionality seems difficult to be complied with. At the very least, the injunction should be narrowly tailored and show a sufficient degree of effectiveness. Moreover, not only courts, but also Member States themselves are limited by the Charter in the discretion they enjoy with regards to the way of implementing Art. 8(3) InfoSoc Directive. Whether they provide for disconnections against intermediaries as an administrative or judicial instrument of injunctive nature, Union law is implemented and thus also EU Charter constrains their actions. These problems make it extremely complicated that these injunctions are granted if courts, as they must, demand that the injunction applied for complies with the principles enshrined in the Charter and the Convention. In any event, obtaining such an injunction would be costly and slow for the plaintiff, and the outcome would hardly be effective in bringing to an end the user’s infringing activity. While some right holders may be inclined to explore this injunctions on the basis of the national transpositions of Art. 8(3) InfoSoc Directive, it seems unlikely that this form of relieve may end up being an attractive and effective tool to curb online infringement.
Any comment or suggestion will be welcome!
Spanish court orders an ISP to disconnect a copyright infringer
Cross posted on The Center for Internet and Society at Stanford Law School
In a recent ruling issued by the 15th Section of the Barcelona Court of Appeals – a Section specializing on IP – the Spanish ISP R Cable y Telecomunicaciones Galicia has been ordered to suspend, immediately and for good, the Internet connection of a user who engaged in copyright infringing file sharing. The text of the ruling (in Spanish) is available here (PDF). This is the first ruling of this kind in Spain.
The action was brought by Promusicae, an association of Spanish music producers, along with the main music labels operating in Spain. Aided by DtecNet, an anti-piracy firm, Promusicae learned of an internet user who was making available more than five thousand music files in his hard drive shared folder, using the P2P network Direct Connect. The investigative firm actually downloaded three files which corresponded to copyrighted songs owned by the plaintiffs. The user was identified by his nickname and IP address only. It was not possible to find out the user’s real identity as ISPs in Spain are not obliged to reveal the identity of their users for purposes of civil lawsuits.
Not knowing the identity of the file sharer, the plaintiffs brought the case directly and exclusively against the ISP, asking for an injunction under articles 138 and 139.1.h) of the Spanish Copyright Act which allow right holders to seek injunctions against intermediaries whose services are used by a third party to infringe copyright. The requested injunction consisted of suspending the provision of internet access to the infringer. The possibility of asking for injunctions against intermediaries is contemplated in art. 8(3) and Recital 59 of the EU Copyright Directive, though the specific modalities of such injunctions are left to Member States’ national law.
Strikingly enough, the ISP chose not to answer the complaint and didn’t intervene at all in the lawsuit.
The court of first instance dismissed the claim, holding that the user’s conduct was not infringing. The Court of Appeals reversed and held that the user’s acts were indeed infringing as they constituted unauthorized acts of reproduction and making available to the public. It held therefore that plaintiffs were entitled to the sought injunction.
Some difficult questions arise from this case – I will highlight just a few.
First, the user was not a party in the proceedings, as the lawsuit was filed only against the ISP. This poses the question of whether the infringement could be found without summoning the allegedly infringer – though it is of course unlikely that the user could have successfully invoked a defense against the finding of infringement.
Second, articles 138 and 139.1.h) of the Spanish Copyright Act require the injunction to be objective, proportionate and non-discriminatory. The court, however, did not assess at all whether such a radical measure satisfied the required proportionality.
Third, and closely linked to the question of proportion, an IP address does not necessarily identify a single individual as it could have been shared by different people.
Finally, the real effect of the injunction is rather dubious, as the infringer can easily shift to a different access provider.
Website operator sentenced to 18 months of prison for linking to P2P
Two recent rulings handed down in Spain have reached opposite conclusions on the much debated question of whether or not linking to copyright infringing content amounts to an act of communication to the public, and thus can be characterized as a primary infringement.
Both rulings come from criminal courts. In the first one, the case of mejortorrent.com and multiestrenos.com, the court held that linking to files located in P2P networks does not constitute a communication to the public, being instead a merely intermediary act (see Auto del Juzgado de Instrucción número 4 de Bilbao, August 30, 2013). The court notes that, in addition, the safe harbors laid down in the Spanish Information Society Services Act would apply.
In contrast, in a more recent ruling, the case of bajatetodo.com, another criminal court found that the website operator did engage in a communication to the public when providing links to infringing content hosted in P2P networks (see judgment 453/13 Juzgado de lo penal número 4 de Castellón, October 30, 2013). The court rejected the claim that the activity is sheltered by the linking safe harbor of the Spanish law. As a result, the website operator was sentenced to 18 months of prison (which most likely will not be effective, as is usual in sentences below 2 years) plus a fine. In addition, damages were awarded to the right owners who brought the action.
These rulings show how the issue is still debated in Spain. While most of the rulings in Spain have reached the conclusion that websites providing links to infringing material do not realize an act of communication to the public, some others have come to the opposite result. This debate has taken place for the most part in criminal procedures brought by right owners (a list of cases can be found here, in Spanish).
Of course, this is by no means just a domestic debate. Some references for a preliminary ruling which address directly this question are pending before the CJUE (see cases C-466/12, Svensson; C-279/13, C More Entertainment AB), and different opinions have been put forward by entities such as ALAI and the European Copyright Society.
In ruling recently handed down by the Spanish Supreme Court, Google has been held not liable for linking to pieces of news containing false accusations against an individual.
This is the first case in which the Supreme Court deals with the specific “safe harbor” for information location tools (the linking safe harbor).
While the Electronic Commerce Directive chose not to establish a safe harbor for information location tools, the Spanish transposition law did establish a specific liability exemption covering this activity. According to Art. 17 of Ley de Servicios de la Sociedad de la Información, information society service providers providing links, directories or information search tools shall not be liable for the information to which they lead their users. This liability limitation is subject to the condition that the provider does not have actual knowledge that the activity or the information to which it directs, or which it recommends, is illegal, or that it damages a third party’s goods or rights. In case the provider obtains such knowledge it must act diligently to remove or to disable the link, in order to benefit from the exemption.
In this case, the plaintiff brought a civil action against Google and its CEO on account of the search results pointing to three websites where false accusations against the claimant were made. The claim was that by contributing to spread the defamatory content, Google was harming plaintiff’s reputation. The claimant had requested Google to take down the links several times, which Google refused to do, until the plaintiff finally filed the complaint.
The court of first instance dismissed the claim, holding that Google was protected by the linking safe harbor, and asserting that, despite the requests made by the claimant, the search engine did not obtain the required actual knowledge of the linked content’s illegality. The ruling was upheld by the Court of Appeals. Now the Supreme Court confirms again the dismissal.
A key element is the notion of actual knowledge. The linking safe harbor defines it in the same terms than the hosting safe harbor:
“It will be understood that the service provider has the actual knowledge referred to in […] when a competent body has declared that the data are unlawful, or has ordered their removal or the disablement of access to them, or the existence of the damage has been declared, and the provider knew of this resolution, without prejudice to the procedures of detection and removal of content that providers may apply by virtue of voluntary agreements, and without prejudice to other means of actual knowledge that might be established.”
The Supreme Court had already established in a 2009 ruling dealing with the hosting safe harbor that this narrow notion of “actual knowledge” was inconsistent with that provided for in the E-Commerce Directive, and that it should thus be construed in a broad way so as to encompass the knowledge derived from facts or circumstances from which the illegal activity is apparent.
The Supreme Court deals now for the first time with the lack of actual knowledge requirement within the linking safe harbor and assumes that it must be construed in the same open way. It holds, nonetheless, that the notifications made by the claimant were not enough as to put Google in knowledge, because the illegal character of the information was not obvious in itself. Therefore, Google didn’t need to take the links down to benefit from the linking safe harbor.
Interestingly, thus, in seems that in a situation like the one considered in this case, the only way for Google to gain the relevant knowledge would have been a court order declaring the illegality of the linked content, much in the way of the narrow interpretation of the provision.
The text of the ruling (in Spanish) is available here
A commercial court in Madrid has recently addressed for the first time in Spain a claim against the use of someone else’s trademark as a keyword within the Google Adwords program. While the ruling was actually handed down last December, it has not been until very recently that it has become publicly known. The case is Maherlo Iberica S.L. v. Calzados Fernando García S.L. (Commercial Court #9 of Madrid, December 22, 2011). The plaintiff is a company that commercializes elevator shoes for men—shoes with raised insoles that make people look taller—and holds several trademarks bearing the word MASALTOS and MASALTOS.COM. The defendant is a competitor company who sells as well elevator shoes for men, who was using the word MASALTOS in several allegedly infringing ways—in its web site, both visible and hidden as metatags, and also as a keyword in Google’s Adwords.
A grammatical remark must be made before going into more detail. The word MASALTOS is actually a mix of two words. The Spanish word “más” (bearing this orthographic accent) means “more”. The adjective “altos” means “tall”, specifically for substantives which are masculine and plural, such as “hombres” (men). Using the words “más altos” as a trademark for shoes that make men look taller has the obvious problem that these words actually serve to design the intended purpose of the goods and hence such a sign could not constitute a trademark according to article 3(1)(c) of Directive 2008/95/EC – and article 5(1)(c) of the Spanish Trademark Act.
As a matter of fact, the defendant filed a counterclaim asking the court to declare that plaintiff’s trademarks were void in the first place because of their descriptive character. The court began by analyzing this claim; as if the trademarks were in fact void the action brought by the plaintiff would lack merit. The court found, however, that the plaintiff’s trademarks had some distinctive character and thus were not void, particularly due to the fact that those two words are written together and without the orthographic accent (MASALTOS), and that the trademarks are not just denominative but also graphic, as the words are presented with a particular shape. The court thus concluded that while the trademark owner cannot prevent a third party from using the two separate words (más altos), the use of the expression MASALTOS as such could indeed constitute a trademark infringement.
The defendant actually used this expression in several ways. It runs a website under the domain name “hiplus.com”. At the time the lawsuit was filed, the homepage featured the slogan “Hiplus – Hombres MAS ALTOS. Zapatos con alzas para ser MAS ALTOS” (Hiplus – Taller men. Shoes with raised insoles to be taller). In an interior webpage, though, the two words appeared written together: ““Hiplus – Hombres MASALTOS. Zapatos con alzas para ser MASALTOS”. This webpage was located at “hiplus.com/masaltos” – hence again one could see the sign written as a single word.
What makes the case more interesting is that the defendant had as well selected those words—both “más altos” and “masaltos” as keywords to trigger sponsored links within Google’s Adwords program. It also he word “masaltos” as a metatag in the webpage source code in the hope of appearing in the organic search results as well.
The ruling relies on the interpretation offered by the EUCJ in Google France (joined Cases C-236/08 to C-238/08) and its progeny (namely L’Oréal and Interflora). Accordingly, it holds that an advertiser who purchases a referencing service and chooses as a keyword a sign identical to a third party’s trademark is actually using the mark in the course of trade (see Google France, 51). When this use is intended to make internet users aware of the goods offered by the advertiser, it constitutes a use in relation to those goods or services (see Google France, 71). The court quotes again from Google France stating that a trademark owner is entitled to prohibit advertising based on such a keyword “where that ad does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party” (see Google France, 99). It quotes as well from the Interflora judgment regarding the adverse effect on the ‘investment’ function of the mark.
Interestingly, the ruling maintains that while the EUCJ holdings relate to cases of identical signs, they can “without any doubt” be applied to the use of similar signs for identical or similar products that cause confusion, provided that one or more of the trademark functions is affected. Moreover, it holds that this doctrine can be applied as well to the use of identical or similar signs as metatags.
The court concludes that, in this case, the use of the expression “MASALTOS” as a keyword by the defendant cannot be justified on account of the need to describe his products. Rather, it is a use that adversely affects the origin indication function of the plaintiff’s trademark, particularly taking into account the fact that the defendant’s website uses as well the same sign. The court is convinced that the only purpose of this conduct is to mislead users.
Accordingly, the ruling grants the injunction asked for by the plaintiff. In addition, the plaintiff is awarded 6,059.25 Euros in statutory damages pursuant article 43(5) of the Spanish Trademark Act.
More info (in Spanish) here
A Spanish Court has made today a referral to the European Union Court of Justice regarding the so-called right to be forgotten.
The issue is in essence whether individuals have the right to oblige search engines to erase or block search results that point to personal information.
The Court making the referral is the Audiencia Nacional. Some 130 cases are pending before it, in which Google is appealing injunctions issued by the Spanish Data Protection Authority against the search engine.
The specific case considered in the referral relates to an official notice of foreclosure, derived from an outstanding debt with the Social Security, which appeared in La Vanguardia (a Catalan newspaper) in January 19, 1998. The debt was later on paid by the debtor and the foreclosure never took place. However, if you type the name of the concerned person on Google, the first result links to the page of the newspaper’s archive showing that old notice of foreclosure.
The affected person resorted to the Spanish Data Protection Authority (AEPD), asking for an injunction against both the newspaper and the search engine. The AEPD dismissed the claim against the newspaper (who was under the legal obligation of publishing the official notice), but issued an injunction against Google Spain SL and Google Inc. to delete the data from the search engine’s index. Google appealed this injunction to the Audiencia Nacional.
The court is referring nine questions to the ECJ, which can be summarized as follows.
a) Regarding the applicable law, the problem is whether the data protection Directive 95/46/EC and the national law transposing it apply to Google—being Google Inc. a US company. What the national court is asking the EJC in this respect is in essence:
(i) Whether Google Spain SL can be deemed an “establishment” under Article 4(1)(a) of the Directive.
(ii) Whether Google “makes use of equipment, automated or otherwise, situated on the territory of” Spain under Article 4(1)(c) of the Directive.
In this regard, the court asks if this can result from the fact that Google uses its crawlers to gather information from websites hosted in Spain, or from the fact that it uses a Spanish country code TLD (Google.es) and directs Spanish users to searches and results relevant for them in terms of language or location.
Moreover, the court asks whether that “use of equipement” can be inferred from the fact that Google stores the indexed information in servers whose location is kept undisclosed.
(iii) Whether, if the previous questions are to be answered in the negative, still the Directive should apply taking into account that Data Protection is a fundamental right according to Article 8 of the Charter of Fundamental Rights of the European Union.
b) As to the search engine’s activity, the court asks in essence:
(i) Whether the functions of a search engine fall under the notion of “processing of personal data” as defined in Article 2(b) of the Directive 95/46/EC.
(ii) If the previous question is to be answered in the affirmative, the court asks whether the company running the search engine can be deemed to be the “data controller” according to Article 2(d) of the Directive, with all the obligations the Directive imposes on such controllers.
(iii) If the previous question is to be answered in the affirmative, the court asks whether the National Data Protection Authority, enforcing the rights laid down in Articles 12(b) and 14(a) of the Directive, may directly require the search engine to remove the data form its index, without previously or simultaneously requiring this removal to the origin website where the information is published. And whether search engines would be exempted from the obligation to remove the data when the publication of that information was licit is maintained in the origin website (as it was in this case).
c) Finally, regarding specifically the so-called “right to be forgotten”, the court asks whether the rights to the erasure or blocking of data [art. 12(b) Directive 95/46/EC], and to object to the processing of data [art. 14(a) Directive 95/46/EC] allow the data subject to prevent search engines from indexing personal information of her, on the basis that she doesn’t want this information to be known by Internet users because she thinks it may harm her or because she want it to be forgotten, even if that information was lawfully published by third parties.
The referral is certainly timely and interesting, not just for Spain but for all Member States.
Read more: The court ruling making the referral (PDF) (in Spanish)
More on the Alfacs v Google case and the “right to be forgotten”
[UPDATE: The text of the ruling is available here (RTF)]
On the previous post I briefly covered a recent ruling from a Spanish civil court in a case over the so-called “right to be forgotten”. The case, Alfacs v Google Spain, has received a good deal of attention, both domestic and international. Thus, I think it may be worth saying a little bit more about this case, and contextualizing it within the Spanish case law on this matter.
Some clarifications on the Alfacs v Google Spain
First, the plaintiff is not an individual but a company. Therefore there are no data protection rights involved. That makes this case somewhat special, as almost all cases against Google regarding the right to be forgotten have been brought so far by individuals – and not before a civil court, but before the Spanish Data Protection Authority. In this case, the right claimed to be infringed is the right to honor and reputation, which applies to moral persons as well.
Second, the plaintiff was only suing Google, not the original sources of the pieces of news. Unlike other cases, where the problem is that Google shows links to articles presenting inaccurate stories or defamatory statements, in this case the plaintiff has no problem with the original articles and concedes they are protected by freedom of expression and information. Why then is it suing Google? According to the ruling, the plaintiff considers that Google is liable for choosing to show those particular search results, which harm the plaintiff’s reputation.
Third, the case was dismissed exclusively on account of Google Spain’s lack of standing to be sued. Google Spain, SL–the Spanish subsidiary of Google Inc–was the only defendant named in the lawsuit. However, Google Spain has no involvement at all in the operation of the search engine. This is the first and only issue the ruling deals with. It finds that the entity responsible for the search engine’s operation is the California based corporation Google Inc. The complaint sought moral damages–for the way the results are shown–as well as an injunction to stop showing the results that way. Both petitions can only be directed towards the entity that shapes the results and has the power to stop presenting them–Google Inc.
The question is then which would have been the outcome if the complaint had been filed against Google Inc.? A previous case on a similar matter may shed light into this—Palomo v. Google.
Palomo v. Google Inc.
The relevant case in this field is Palomo v. Google Inc. (ruling of 13 May, 2009, Court of First Instance #19 of Madrid, affirmed by the Madrid Court of Appeals, ruling of 19 February, 2010). In this case, an individual sued Google Inc. on account of the search results pointing to some pieces of news and TV shows which were defamatory in nature. The court found that Google Inc. was shielded from liability by the linking safe harbor set forth in art. 17 of the Spanish Information Society Services Act (LSSI).
According to the ruling, Google Inc. didn’t have actual knowledge of the illegal nature of the linked contents and thus is protected by the safe harbor. Under a strict construction of art. 17, in order for the search engine provider to have actual knowledge, a previous order or ruling declaring the unlawful nature of the linked content must have been issued, and the provider must know about that ruling.
The court of appeals dealt particularly with the issue of whether or not the Spanish LSSI was applicable to the American corporation Google Inc. It responded in the affirmative on the grounds (maybe surprising) that a subsidiary of Google Inc.—Google Spain S.L—has permanent premises in Madrid.
To conclude, if Alfacs decided now to sue Google Inc., and the court followed the steps of the Madrid Court of Appeals, Google Inc. would probably be held not liable, all the more in a case such as Alfacs, where the linked contents were not unlawful in nature.
[UPDATE, 29 Feb 2012, 4:40pm. The owner of the campsite has contacted me. In his view, there is a problem with Google’s algorithm regarding searches about Alfacs Campsite. He notes that if you search for “Accidente Camping Los Alfaques” (that is, Alfaques Campsite Accident, which would be a sign that you are interested in the accident happened there), the terrible four images of carbonized bodies don’t show up, whereas if you search for “Camping Los Alfaques” those images do appear and they do so in the very first result. (I’ve checked this out and yes, this is what happens when searching in Google.es).]
Google Spain wins lawsuit over the “right to be forgotten”
A civil court in Spain handed down last Thursday a ruling dismissing plaintiff’s claims against Google Spain over the so called “right to be forgotten”. The case is Alfacs Vacances SL v. Google Spain SL (ruling of February 23, 2012, issued by the Court of First Instance of Amposta).
While the right to be forgotten is being the subject of heavy litigation in Spain, this is one of few judicial rulings on the matter. Indeed, most claims have been brought before the Spanish Data Protection Authority, its orders being subsequently challenged before the Audiencia Nacional (the court with the power to reverse the orders issued by the DP Authority). About 130 cases are thus pending before the AN, which might be about to refer the issue to the EUJC.
The plaintiff in this civil case, Alfacs Vacances SL, runs a campsite near Tarragona. In 1978, the campsite was hit by a terrible accident with more than 200 people killed and many others severely burned when a tanker truck loaded with flammable liquid got on fire on the highway just in front of the campsite. While the accident happened more than 30 years ago – and the campsite was acquitted of any liability – it still springs out as the first search result when you search for the Alfacs campsite (Alfaques, in Spanish) on Google, including horrifying thumbnails of burned corpses. This is certainly not the kind of publicity you want for attracting new clients.
Alfacs Vacances SL filed a lawsuit against Google Spain SL, claiming that the way Google chooses to order and present its search results violates the plaintiff’s right to honor and damages its reputation. The complaint sought moral damages, as well as an injunction to stop showing those results.
Though Alfacs Vacances had sent some notices to Google Inc., the complaint was finally filed exclusively against Google Spain SL, its Spanish subsidiary, whose activity is limited to marketing and advertising services. As the entity actually running the search engine is Google Inc. – the American company – Google Spain SL alleged lack of standing to be sued. The judge accepted this contention and dismissed the case for lack of standing. Hence, and though it is a clear win for Google Spain, the ruling doesn’t address any of the underlying issues, which is somewhat disappointing.
[Follow Up: More on the Alfacs v Google case and the “right to be forgotten”]
Spanish court: jail time for linking to copyright infringing files
A Spanish court recently sentenced the administrators of two websites to one year of jail time and fines for linking to copyrighted works. The ruling came as a surprise, as case law had held so far that merely linking to infringing files is not a criminal offense under the Spanish Criminal Code (SCC). I’ll try to put the ruling in its context. I’ll refer to this case as Fenixp2p.
First, the ruling deals with the activity of running a website devoted to provide links to music or movie files. The site itself doesn’t host the files. Rather, they are located either in p2p networks – and thus ultimately in user’s hard disks – or in servers such as Megaupload or Rapidshare, which host a huge amount of copyrighted files. The same activity has been considered in many other criminal cases. Courts so far had consistently acquitted the accused parties, finding that the described activity doesn’t constitute a criminal offense. (To be more precise, there was an exception to this general trend, though it was a case where the accused agreed to plead guilty; hence the judge wasn’t properly briefed, and declared the existence of the crime without much analysis.)
In order to find a copyright crime, at least one of the following conducts must have taken place: reproduction, communication to the public, plagiarism or transformation of the copyrighted work (art. 270 SCC). In the absence of any of those conducts of direct infringement there is no criminal copyright offense.
In Fenixp2p the court of Appeals reversed the acquittal issued by the lower court, and held that the type of linking conduct carried out by the two websites was indeed a form of communication to the public. Although this contradicts almost all previous rulings by other courts, there might be some room to read the Spanish Copyright Act this way, particularly because of the general clause of art. 20 of the Copyright Act, which defines “communication to the public” in an extremely broad fashion. Unfortunately the court didn’t elaborate much on this point.
The ruling notes that both accused acknowledged having recorded the audio of Spanish-dubbed movies exhibited in theaters in Spain. While the court clearly states that it will not take this element into account due to the lack of further evidences, the implication is highly relevant. Though never demonstrated, it is not unlikely that the goal of recording the Spanish audio was to insert it in an original movie file previously downloaded from the Internet, then upload the result to sites such as Megaupload, and finally provide the link to that file on their websites.
Besides the direct infringement (in this case, according to the court, the communication to the public) the criminal offense requires lucrative intent. It was beyond discussion that the accused had got money thanks to the ads placed on their webs.
Though it is the first one, a ruling like this one was not unthinkable. However, several parts of the court’s argument seem flawed to me. It appears that the court doesn’t really know how the technology works or what a p2p network is. More importantly, it misses the point when it analyses whether the accused administrators might be protected under the so-called linking safe harbor. The court held it doesn’t apply but the arguments are unpersuasive. Moreover, the court reached the astonishing conclusion that the activity falls under the so-called caching safe harbor, which is simply untenable.
— The full text of the ruling in Spanish (PDF)
The controversial Spanish bill that aims to block allegedly copyright infringing websites continues to be in the center of a hot public debate. The bill, widely known as “Ley Sinde” –Sinde Act, after the Minister of Culture’s name– was rejected by Congress last 21 December. The Government is now trying hard to move it forward in the Senate.
But, what is this bill exactly all about and how is it different from the legislative measures taken in other European countries? I will try to clear it up in this post.
The “Sustainable Economy Bill”
The so-called Ley Sinde was actually proposed as part of the Sustainable Economy Bill (SEB), a bill addressing a wide range of issues in response to the present scenario of economic recession. The SEB included –almost hidden as a final provision– this new legal mechanism conceived to tackle online copyright infringement (hereinafter, the “Ley Sinde”).
When the whole SEB was finally voted in the House of Representatives (Congreso de los Diputados) on December 21, this particular piece was rejected, and so the bill was sent to the Senate without the “Ley Sinde” provision. What the Governement is trying to do now is to reintroduce is as an amendment to the SEB in the Senate.
Not targeting individual file-sharers
Unlike other legislative measures taken by Member States such as France or the United Kingdom, the Spanish Ley Sinde (at least in its original form) doesn’t aim at users that illegally make available copyrighted material. Rather, it focuses exclusively on information society service providers—whether or not acting as intermediaries—who may violate copyright.
While it covers all kinds of information society service providers, the main purpose behind the Ley Sinde—as publicly stated by its promoters—is fighting against websites that provide links to copyrighted material located in P2P networks or on public servers, whether for downloading or streaming.
The Ley Sinde grants to an administrative body—the newly created Second Section of the Intellectual Property Commission—the power to assess whether an information society service is violating copyright. It also grants this administrative body the power to order the provider of that service to stop providing it or to remove the infringing material.
Amending the Law on Information Society Services and Electronic Commerce
As it deals specifically with the freedom to provide information society services, the new rule is drafted primarily as an amendment to the Law on Information Society Services and Electronic Commerce (LSSICE) –the Spanish Act transposing the E-Commerce Directive– particularly to its Art. 8.
Let us then start by presenting the content of this provision and its links to the E-Commerce Directive (ECD), and then we will see how it would be amended if the Ley Sinde is finally enacted.
Art. 8 LSSICE establishes the cases in which a Spanish judicial or administrative authority may restrict the provision of information society services. It is directly connected to Art. 3 ECD, which deals with the so-called country of origin principle and with the exceptions to it.
According to this principle, “Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State”.
There are, however, some exceptions to this principle, which are set forth in Art. 3.4 ECD. This article allows Member States, under certain conditions, to take restriction measures in respect of a given information society service when the measures are necessary for some of the following objectives:
(a) “public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons”,
(b) “the protection of public health”,
(c) “public security, including the safeguarding of national security and defence”, and
(d) “the protection of consumers, including investors”.
The measures must be proportionate to these objectives and “taken against a given information society service which prejudices [them], or which presents a serious and grave risk of prejudice to those objectives”.
The country of origin principle set forth in Art. 3.2 ECD was transposed in Art. 7 LSSICE. Next, Art. 8 LSSICE—in accordance with Art. 3.4 ECD—provides for the possibility of adopting restriction measures with regard to a given information society service when it prejudices or may prejudice to some of the objectives listed in it.
However, unlike in Art. 3.4 ECD, this possibility of restriction measures in Art. 8 LSSICE is not established just as an exception to the country of origin principle but in general, that is, regardless of whether the service is originated in another Member State, in Spain, or in any other country.
This does not appear to be an improper transposition of the Directive. According to the ECD it is possible for a Member State to adopt restriction measures for the sake of the said objectives with regard to services originating in another Member State. Thus, it seems that nothing prevents a Member State to subject the services originating within its territory to the same kind of restrictions, let alone services originating in non-EU Countries.
The grounds for adopting restriction measures in the LSSICE
The measures envisioned in Art. 8 LSSICE may consist of the interruption of the provision of the service or the removal of the illicit material. The objectives that may motivate those measures are similar to those listed in Art. 3.4 ECD:
(a) the protection of public order, the investigation of criminal offences, the public safety and the national defence;
(b) the protection of public health and of consumers, including investors;
(c) the respect of human dignity and the principle of non-discrimination on grounds of race, sex, religion, opinion, nationality, disability or any other personal or social circumstance; and
(d) the protection of youth and childhood.
The restriction measures should be adopted by the authority which is competent for the protection of the concerned objective, acting within the competencies conferred on it by the Law.
This “competent authority” does not always need to be a court, as the protection of some of the objectives is also entrusted to administrative bodies—for instance in the case of public health or consumer protection.
Here is where the Ley Sinde comes into play. It introduces an amendment to this Art. 8 LSSICE, which consists of adding a new objective to the list: the protection of copyright.
The purpose of the Ley Sinde, as mentioned above, is to allow an administrative authority to order restriction measures against information society services that may violate copyright. Thus, Art. 8 LSSICE—an article that, as noted, already allows not only courts but also administrative bodies to restrict the provision of information society services—was seen by the drafters of the bill as the best place to insert the new rule.
A new administrative authority
Next thing is creating the administrative authority that will exert the function of protecting copyright and ordering the said measures. To this end, through an amendment to the Copyright Act (TRLPI), the SEB establishes a new Section within an already existing body—the Intellectual Property Commission.
While the First Section of this Commission will continue to exert mediation and arbitration functions, the newly created Second Section will have the mission of protecting intellectual property rights from its violation by information society service providers, and will be the authority with the power to adopt the restriction measures provided for in Article 8 LSSICE.
According to the proposed amendment of Art. 158 TRLPI, the Second Section of the Intellectual Property Commission will be able to order the measures for the interruption of the provision of an information society service or for the infringing materials to be taken down.
The measures may be taken against an information society service provider who acts with direct or indirect lucrative intent. It appears that the reference to “indirect” lucrative intent is meant to include the situations such as those where the owner of a website offering links to infringing content does not charge a fee for the service, but seeks economic profit through advertising placed on the page.
The restriction measures may be taken as well against providers lacking direct or indirect lucrative intent as long as their conduct causes—or is capable to cause—a patrimonial harm. Arguably, this encompasses any situation involving an infringement, and thus—in spite of what was claimed sometimes in the debates—the bill does not target just people who try to profit from copyright infringement but has a potentially broader scope.
Freedom of expression concerns
Once the first draft of the Ley Sinde was made public it prompted a strong opposition from internet users. In particular it was argued that allowing an administrative authority to order the closing down of a website would violate the principle of freedom of expression.
It was contended that websites are media and therefore only a court could order to close them down. Actually, the current text of Art. 8 LSSICE already takes this into account, as a measure of closing down of a website adopted by an administrative authority might run afoul of Art. 20.5 of Spanish Constitution, which establishes that “[t]he seizure of publications, recordings, or other means of information may only be adopted by a judicial decision”.
Indeed, Art. 8 LSSICE includes a paragraph stating that the competent judicial authority—as the one responsible for ensuring the rights to freedom of expression, to receive information, to academic freedom and to literary, artistic, scientific and technical creation—will be the only one who may adopt the restriction measures contemplated in that provision wherever this competence is attributed exclusively to judicial authorities by the Constitution or other laws governing the concerned rights.
It could be argued, thus, that this paragraph of Art. 8 LSSICE already ensures that the proposed amendment will not allow administrative authorities to take restriction measures that may violate freedom of expression and the other related rights. However, it was contended that the reform would indeed be an assault on free speech as the one who would decide in the first place whether or not the restriction measure affects those rights would be the administrative authority itself.
A truly peculiar system of judicial control
Therefore, and in view of the strong opposition against the bill, before introducing it into Parliament the government modified it to include a (truly peculiar indeed) system of judicial control.
It was decided that once the Commission orders a restriction measure, it must ask the court to authorize its execution. However, the court will not be able to consider the merits of the case, i.e. whether there is indeed a violation of copyright.
Rather, the court must only take into account whether the concerned measure prejudices the rights and liberties enshrined in Art. 20 of the Constitution, quoted above. Moreover, the court’s decision must limit itself to either grant or deny the authorization—it cannot modify or amend the measure.
This peculiar system raises important concerns. Not the least of them is that it appears to craft an administrative procedure in the hope of achieving something that courts have been denying so far—deeming that websites that link to infringing content engage in copyright infringement and closing them down.
This is certainly striking, as it is difficult to see how an administrative body could find those websites to be infringing where judges have found them not to be so.
Note: this post was based on this recently published paper
ISP Liability 