ISP Not Obliged to Remove Accusation Against Government in Absence of a Court Verdict

discussion of the judgment of the State v. IS Interned of the Court of Haarlem in preliminary relief proceedings dated 14 May 2008

Background

A-Group is a dealer in second-hand cars. One of its partners – “X” – is an asylum seeker from Africa who has exhausted all legal means.A-Group received a number of tax assessments from the Dutch Tax and Customs Administration over 2004 through 2007. On the basis of comments made by X, the Tax and Customs Administration suspected that it would not be able to collect the tax assessments and made an accelerated collection.

X then accused the Tax and Customs Administration, and the official dealing with the case personally, of being corrupt and racist, and posted a complaint on the website of A-Group. This complaint contained the following text:

(…)”. [Y] for Racist motives imposed an unrealistic and unjust tax on our company. It is disheartening to see what position Racism and hate holds in the Dutch society. It is worth mentioning that since we started operating at this address in 2004, we have been receiving countless threats from anonymous persons. They were not happy that a company owned and run by a none-European was. They started realizing their threats by destroying our properties. They went further by threatening my life. Since I did not give in to all these they decided to start making unnecessary and false complains against our company. After haven failed to achieve their goals they started looking for Dutch officials who share same RACIST view. They finally saw one working for the Dutch tax department in the person of Mr. [Y]. This corrupt and racist tax official decided to impose a very high tax on me. On collection of his imposed tax he invoked emergency law permitting him to collect the said amount on the spot. Knowing that it was impossible to comply with this law, this racist tax official went ahead to seize all the money they could find with me and in my office. The seized goods and money is ten times the amount they are asking me to pay… We have complained about this unjust and racist treatment, but this seems to please the authority.”
The website of A-Group is hosted by IS Interned Services B.V. (“IS”).

The State of the Netherlands then summoned both A-Group and IS in preliminary relief proceedings, claiming first and foremost that the defendants were ordered to cease making any such comments.

A-Group failed to put forward a defense and the court allowed the claims against A-Group. The more interesting question from a legal point of view is whether this is a case in which a hosting provider can be imposed the obligation to block the content of a client.

ISP’s Obligation to Block

Section 6:196c subsection 4 of the Dutch Civil Code (“BW”) contains a number of “safe harbour” provisions regarding ISPs, in which their liability as intermediaries is limited. This section makes a distinction between mere conduit (providing access), caching and hosting. For example, a hosting provider such as IS is not liable for any information it stores, if it is not aware (or ought to be aware) of the unlawful nature of the information or activity. It is also not liable if it immediately removes the information or blocks access thereto as soon as it does become aware or should reasonably be aware of this unlawful nature.

The mere reporting by a third party of the presence of unlawful information is not sufficient for this purpose. Such a report may only oblige the provider to take action if the correctness of the report is beyond reasonable doubt; for example, if the information on the website is manifestly unlawful. This criterion of ‘manifest unlawfulness’ is commonly used, but is often of little avail to intermediaries. When is something manifestly unlawful? This is clear in the case of child pornography, but what about this case, for example?

Strict Test of Manifest Unlawfulness

The court in preliminary relief proceedings held that in this case it was not possible to say that the correctness of the claim of the State Secretary was beyond reasonable doubt. IS was not and could not be aware of what the comments of X were based on, so IS was also not able to determine whether or not these comments were unlawful. Furthermore, the court rightly pointed out that public authorities “should be expected to show considerable resilience with regard to critical comments made in public”. The court concluded that IS had not acted unlawfully by not having immediately blocked the access to the website of A-Group. Moreover, IS had stated its willingness to block the access to the website after it would have received a judicial decision in which the comments were found to be unlawful. The court further considered that the State could have sufficed by initiating legal proceedings against A-Group alone. The claims against IS were therefore denied.

Good News for Intermediaries on the Internet

This judgment will be warmly welcomed by the industry. Many internet intermediaries are struggling with the question of whether something is manifestly unlawful. ISPs are in an awkward position. On the one hand the ISP’s has a duty not to muzzle its clients for no good reason, but on the other hand the ISP should prevent abuse of its server space by blocking information that is manifestly unlawful.

The criterion of ‘manifest unlawfulness’ not only applies to hosting providers, who fall under Section 6:196c subsection 4 BW. Pursuant to Section 6:196c subsection 5 BW and case law in internet cases, this criterion is relevant for all internet intermediaries.

Judging whether something is manifestly unlawful is usually difficult, and often impossible, as the court also concluded in this case. It seems a clear rule that an ISP that declares in such a doubtful case that it will take action only after having receiving a judgment in which the information is confirmed unlawful, cannot be held liable itself and cannot be ordered to block the information prior to receiving a copy of that verdict.