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
The clue is in the DMCA
• (a): Transitory Digital Network Communications
• (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)
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
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
• The ﬁrst ruling agreed with the claimants based entirely on expert
• Appeal made it all the way to ECJ.
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.
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.”
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?….
Private right to
be forgotten (if
you have the