BACK TO BASICS: INTERNET LAW OR ‘THREE WISE MONKEYS OF CYBERSPACE’ Prof. Christopher T. Marsden Sussex Law School
SCL Marsden Introduction to Internet Law
Jul 16, 2015
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BACK TO BASICS
INTERNET LAW
OR
lsquoTHREE WISE
MONKEYS
OF CYBERSPACErsquo
Prof Christopher T Marsden
Sussex Law School
DISCLAIMER
This is an academic presentation
I make no warranty for its accuracy
If legal advice it would be accompanied by a bill
I am not a solicitor I am an author
Internet Co-regulation (Cambridge 2011)
Regulating Code (MIT Press 2013)
Net Neutrality (Bloomsbury 2010)
Chapter in Telecommunications Law and Regulation
(Oxford 2012)
TODAYSrsquo FIRST HOUR
Professor Chris Marsden will summarise the law
Internet intermediary liability
Update on
Tamiz Court of Appeal judgment Defamation Act 2013
Golden EyeNewzbin litigation
developments at the European Court of Justice
recently-decided Delfi v Estonia Strasbourg case
changes to intermediary liability
in the proposed ConnectedContinent Directive
WHAT I WILL NOT TALK ABOUT
Individual liability
S127 Communications Act 2003 (abusive messages)
Contempt of court
TwitterFacebook defamationslander etc
lsquoTerroristrsquo threats - Twitter joke trial
Extra-legal intermediary activities
CleanfeedCAIC blocking list on child abuse
Cameronrsquos anti-porn opt-inout crusade
Enforcementextra-jurisdictional issues (much)
Telecommunications security amp privacy law (much)
Copyright reform ndash licences for Europe
(SCL Editorrsquos blog) httpwwwsclorgsiteaspxi=bp35354
But note that these all influence policy environment around intermediaries
E-COMMERCE DIRECTIVE
IMPLEMENTATION
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DISCLAIMER
This is an academic presentation
I make no warranty for its accuracy
If legal advice it would be accompanied by a bill
I am not a solicitor I am an author
Internet Co-regulation (Cambridge 2011)
Regulating Code (MIT Press 2013)
Net Neutrality (Bloomsbury 2010)
Chapter in Telecommunications Law and Regulation
(Oxford 2012)
TODAYSrsquo FIRST HOUR
Professor Chris Marsden will summarise the law
Internet intermediary liability
Update on
Tamiz Court of Appeal judgment Defamation Act 2013
Golden EyeNewzbin litigation
developments at the European Court of Justice
recently-decided Delfi v Estonia Strasbourg case
changes to intermediary liability
in the proposed ConnectedContinent Directive
WHAT I WILL NOT TALK ABOUT
Individual liability
S127 Communications Act 2003 (abusive messages)
Contempt of court
TwitterFacebook defamationslander etc
lsquoTerroristrsquo threats - Twitter joke trial
Extra-legal intermediary activities
CleanfeedCAIC blocking list on child abuse
Cameronrsquos anti-porn opt-inout crusade
Enforcementextra-jurisdictional issues (much)
Telecommunications security amp privacy law (much)
Copyright reform ndash licences for Europe
(SCL Editorrsquos blog) httpwwwsclorgsiteaspxi=bp35354
But note that these all influence policy environment around intermediaries
E-COMMERCE DIRECTIVE
IMPLEMENTATION
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
TODAYSrsquo FIRST HOUR
Professor Chris Marsden will summarise the law
Internet intermediary liability
Update on
Tamiz Court of Appeal judgment Defamation Act 2013
Golden EyeNewzbin litigation
developments at the European Court of Justice
recently-decided Delfi v Estonia Strasbourg case
changes to intermediary liability
in the proposed ConnectedContinent Directive
WHAT I WILL NOT TALK ABOUT
Individual liability
S127 Communications Act 2003 (abusive messages)
Contempt of court
TwitterFacebook defamationslander etc
lsquoTerroristrsquo threats - Twitter joke trial
Extra-legal intermediary activities
CleanfeedCAIC blocking list on child abuse
Cameronrsquos anti-porn opt-inout crusade
Enforcementextra-jurisdictional issues (much)
Telecommunications security amp privacy law (much)
Copyright reform ndash licences for Europe
(SCL Editorrsquos blog) httpwwwsclorgsiteaspxi=bp35354
But note that these all influence policy environment around intermediaries
E-COMMERCE DIRECTIVE
IMPLEMENTATION
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
WHAT I WILL NOT TALK ABOUT
Individual liability
S127 Communications Act 2003 (abusive messages)
Contempt of court
TwitterFacebook defamationslander etc
lsquoTerroristrsquo threats - Twitter joke trial
Extra-legal intermediary activities
CleanfeedCAIC blocking list on child abuse
Cameronrsquos anti-porn opt-inout crusade
Enforcementextra-jurisdictional issues (much)
Telecommunications security amp privacy law (much)
Copyright reform ndash licences for Europe
(SCL Editorrsquos blog) httpwwwsclorgsiteaspxi=bp35354
But note that these all influence policy environment around intermediaries
E-COMMERCE DIRECTIVE
IMPLEMENTATION
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
E-COMMERCE DIRECTIVE
IMPLEMENTATION
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
WHAT IS AN INTERMEDIARY
US Digital Millennium Copyright Act (DMCA) 1998
ldquoan entity offering transmission routing or providing
connections for digital online communications
between or among points specified by a user of material
of the users choosing without modification to the content
of the materialrdquo
ldquoa provider of online services or network access or the
operator of facilities thereofrdquo
(s 512(k)(1)(A-B))
ISPs search engines BBS operators auction sites
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DIRECTIVE 9848EC ARTICLE 1
Information Society service
any service normally provided for remuneration
(note that can be indirect via advertising)
at a distance
by electronic means and
at the individual request of a recipient of services
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
200031EC lsquoE-COMMERCErsquo DIRECTIVE
Art2(d) ldquoISSPsrdquo information society services providers Section 4 ECD also ldquointermediary service providersrdquo
An ldquoinformation society servicerdquo is defined as
ldquoany service normally provided
1 for remuneration at a distance
2 by means of electronic equipment for the processing
(including digital compression) and storage of data
3 and at the individual request of a recipient of a
servicerdquo
Directive 200031EC on certain legal aspects of information society services
in particular electronic commerce in the Internal Market OJ L 178 1772000
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
3 WISE MONKEYS OF CYBERSPACE
See no evil lsquoMere conduitrsquo under Art12 E-Commerce
Hear no evil No filtering of content beyond types
spam viruses
Note criminal content and anti-terrorist provisions
Speak no evil Notice and Action regime
Freedom of speech issues affected Typical response ndash
lsquoshoot first donrsquot ask questionsrsquo
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
E-COMMERCE DIRECTIVE
PROVISIONS
Article 14 protection from liability for ISPs if [a] the provider does not have actual knowledge of
illegal activity or information and as regards claims for damages is not aware of facts or circumstances from which the illegal activity is apparent or
[b] the provider upon obtaining such knowledge or awareness acts expeditiously to remove or to disrupt access of the information
Mere ciphers for content
Should they engage in any lsquoactiversquo filtering they become liable
Masterly inactivity except when prompted by law enforcement is the only policy open to them
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
WHOrsquoS COVERED BY ECD
E-commerce sites such as Amazon and Ebay
offering online information or search tools for revenue
(eg Google MSN LexisNexis or WestLaw)
Access Providers telecommunications cable and
mobile communications companies
Information society service must be offered ldquoat the
individual request of the recipientrdquo
Excludes TV and radio broadcasters
video-on-demand or email are included
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
RECITAL 18 ECD
ldquoAt a distancerdquo
Employer is not a provider of an ldquoinformation society
servicerdquo in terms of his relationship with his workers
even if they work from home using the businessrsquos server
Doctor is not a provider of such a service as his advice
requires the ldquophysical examination of a patientrdquo
University server provides personal workspace to all
students and MP3 files are downloaded by a student
Copyright holder claims the university is liable
University run ldquoinformation society servicerdquo to students
But primarily face to face education NOT distance learning
Note US uses DMCA s512(e) for universities
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
EXAMPLES OF THREE WISE
MONKEYS
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
INTERNET ACCESS PROVIDERS
Early 1990s cases AOL Compuserve Demon
Prodigy
Distinction drawn IAPs ndash
provided ldquofundamental communications services such
as access information storage etcrdquo
Internet Service Providers (ISPs)
who provided ldquosome additional service which facilitates
a transaction between end users eg identifying one of
the parties providing search facilities etcrdquo
Providers turned to one-stop-shop ndash search email
web storage and access
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
CUBBY V COMPUSERVE (1991) 766 F SUPP
135
CompuServe were sued allegedly defamatory
message appearing in a local forum hosted
CompuServe argued merely distributor of the
information not a publisher and should therefore not be
held liable
New York District Court agreed
CompuServe like newsstand book store or public
library
To hold it to a higher standard of liability than these
distributors
would place undue restrictions on the free flow of
electronic information
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
PLAYBOY ENTERPRISES INC V FRENA 839
F SUPP 1552 (MD FLA 1993)
Frena operated a subscription bulletin board
service (BBS) that distributed pornographic images
100+ were copies of Playboy photos
Frena claimed that the photos had been uploaded
to the system without his knowledge
claimed to have removed the photographs as soon as
he learned that they were copyrighted
Playboys trademarks were obliterated on some
photographs transmitted by Frena and
Playboys Playboy and Playmate marks appeared on
other photographs transmitted by Frena
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
STRATTON OAKMONT INC V PRODIGY
1995 NY MISC 23 MEDIA L REP 1794
Prodigy ldquoa family oriented computer networkrdquo
which as part of its ldquovalue addedrdquo services
controlled and prevented inappropriate messages
To avoid liability an ISP should do as little as possible to
monitor and edit the content of the messages or other
material it carries
more like a newsstand and less like a publisher
BUT that would prevent family-oriented services
Over-ruled Lunney v Prodigy Services Co 5 February
2000 ndash DMCA applied by then
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
GRACE V EBAY (2004)
Ebay not an intermediary for copyright purposes
S230 Communications Decency Act 1996
distributing rather than publishing content provided by a
third party
2004 WL 1632047 (Cal App 2nd Dist July 22)
This decision implicitly limits the intermediaries
protected to publishers
rather than distributors of online information
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
LVMH V EBAY (2008)
French court decided opposite
eBay under a duty to prevent counterfeiting
Since then eBay has been defended in another
case in US courts - two courts are incompatible
Or home town decision
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
COPYRIGHT PERFECT 10 V GOOGLE (2006)
Plaintiff requested a preliminary injunction for Google
to stop creating and distributing thumbnails of its images
and to stop indexing and linking to sites hosting such images
Court granted the request in part and denied it in part
ruling that thumbnails were likely infringing but links were not
Federal court held
onus is on copyright holders to protect their works online
as ISPs or search engines
cannot do the work for them
due to the sheer volume of content on the internet
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
SEARCH RESULTS VORSCHAUBILDER I amp II
German Supreme Court decisions
2010 (Vor I)
Google image search not liable for copyright infringement
display of an artists copyrighted pictures in results
without robottxt lsquodo not indexrsquo
2012 (Vor II)
no liability for image search thumbnails even if they are indexed without permission
If other websites did so with rightsholderrsquos consent
ldquosearch engines are automated systems unable to differentiate whether images have been put online by someone with or without authority to do sordquo
httpkluwercopyrightblogcom20120605vorschaubilder-ii-the-second-case-on-image-search-thumbnails
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
E-COMMERCE ACTION PLAN LOTS OF SOFT
LAW
COM(2010) 245 lsquoA Digital Agenda for Europersquo
COM(2011) 206 Single Market Act - Twelve levers to boost
growth and strengthen confidence
httpeceuropaeuinternal_marketsmactindex_enhtm
COM(2011) 942 A coherent framework for building trust in the
Digital Single Market for ecommerce httpeceuropaeuinternal_markete-
commercecommunications2012index_enhtm
COM(2012) 573 Single Market Act II ndashTogether for new growth
Expert working group MS representativesrsquo co-operation in
application of 200031EC and e-commerce issues httpeceuropaeuinternal_markete-commercedocscommunications
130423_report-ecommerce-action-plan_enpdf
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
MAIN STEPS TO IMPROVE LEGAL
ENVIRONMENT lsquoCLEAN AND OPEN INTERNETrsquo
Twelve years laterhelliplsquoNotice and actionrsquo consultation
httpeceuropaeuinternal_marketconsultations2012clea
n-and-open-internet_enhtm
Note that the website is appallingly out of date
2013 Evaluation study of implementation of
200031EC
Also
Extension of Internal Market Information System (IMI)
Consumer Protection Cooperation network (CPC)
Excessive lsquotake downrsquo was exposed a decade ago
lsquoshoot first ask questions laterrsquo
Marsden Ahlert and Yung (2003) Losing Liberty in Cyberspace
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
INTERNET DEFAMATION
1996 Defamation Act s1
Tamiz leading case
Defamation Act 2013
Changes in defences available
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
WEBSITES AND CURRENT LIBEL LAW IN UK
Defamation Act 1996 defence against defamation
1 not author editor or publisher of comments
2 took reasonable care in relation to its publication
3 did not know and had no reason to believehellipcaused or contributed to publication of defamatory statement
Act defines publisher as ldquocommercial publisherrdquo business is issuing material to the public or a section
of the public who issues material containing the statement in the course of that business
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
E-COMMERCE REGULATIONS 2002
Under the E-Commerce Regulations
secondary publishers can be found responsible for defamatory comments posted using their service can avoid liability for defamation under Regulations
if they act as a mere conduit or caches or hosts of the material
In order to avoid liability service provider must
upon gaining actual knowledge that the initial source has been removed or access to it has been disabled
act expeditiously to ensure that the information is deleted or access to it disabled
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
TAMIZ V GOOGLE [2012] EWHC 449 QB
Conservative council elections candidate Payam Tamiz claimed Google was liable for allegedly defamatory comments
Tamiz notified Google in June and July 2011 series of comments he considered to be defamatory
Tamiz known drug dealer and stolen from former employer
posted as comments by anonymous users of Blogger
Googles response to the notifications was reasonable had not immediately deleted the blog but
sent notice of Tamizs complaint on to the blog owner
blog was eventually taken down on 14 August
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
5 MARCH 2012 JUDGMENT PER EADY J
The fact that an entity in Google Incs position
may have been notified of a complaint does not immediately convert its status or role into that of a publisher
It is not easy to see that its role if confined to that of a provider or facilitator
beforehand
should be automatically expanded thereafter into
a person who authorises or acquiesces in publication
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
ldquoGOOGLE INC IS NOT LIABLE AT COMMON
LAW AS A PUBLISHER claims to remain as neutral in that process after notification as
before takes no position on the appropriateness of publication
It may be true that it has the technical capability of taking down (or in a real sense censoring)
communications which have been launched by bloggers or commentators on its platform Yet that is not by any means the same as saying that it has
become an author or authoriser of publication
Google Inc is not required to take any positive step technically in the process of continuing the accessibility of the offending material whether it has been notified of a complainants objection or not
it should not be regarded as a publisher or even as one who authorises publication under the established principles of the common law
its role as a platform provider is a purely passive one
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
GOOGLE NOT PUBLISHER UNDER
DEFAMATION ACT 1996
DAct s1 person is not a publisher if involved as the operator of or provider of access to a
communications system
by means of which the statement is transmitted or made available
by a person over whom he has no effective control
Google complaint handling not outside the bounds of a reasonable response
If there were any need for Google Inc to rely on [Defamation Act] I believe it would provide a defencerdquo
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
GOOGLE AND MERE CONDUIT
Google also not liable because
Tamiz failed to show Google knew comments unlawful
Tamiz thought implicit in his complaints that he was denying outright any allegation of theft or drug dealing
it cannot be right that any provider is required in the light of [ECD] to take all such protestations at face value
more is required for provider to acquire a sufficient state of knowledge to be deprived of the statutory protection
Google Inc would be exempted from liability in accordance with [ECD Regulations]
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
TAMIZ [2013] EWCA CIV 68 APPEAL
Google (in relation to Bloggercom) became a secondary publisher for defamation law after the Takedown Notice
sect1 DEAct defence (secondary responsibility) in detail
After Takedown Notice not able to satisfy 1(c) as it had knowledge
E-Commerce defence was not examined
Decision of the lower court ([2012] EWHC 449) stands
Reg 19 host only required to takedown where activity unlawful means defamatory and there is no defence to libel
following Tamiz and Davison v Habeeb [2011] EWHC 3031
No Takedown for bare unsubstantiated allegations
nor where defences are prima facie applicableasserted
and it cannot determine the outcome See also McGrath v Dawkins [2012] EWHC 83 (QB)
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DEFAMATION ACT 2013
Adds a defence under section 5 DA 2013
Also see Draft Statutory Instrument 2013 No 3028
Defamation (Operators of Websites) Regulations 2013
httpwwwlegislationgovukuksi20133028contentsmade
Coming into force 1 January 2014
But unlikely to be used until autumn 2014
bull httpwwwlegislationgovukukdsi20139780111104620resources
2013 Act does not abolish
defence under Section 1 of the Defamation Act 1996
hosting exemption Regulation 19 E-Comm Regulations
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
SECTION 5 DEFAMATION ACT 2013
bdquobdquoIt is a defence for the operator to show that it was not the operator who posted the statement on the website
The defence is defeated if the claimant shows that mdash
a) it was not possible for the claimant to identify the person who posted the statement
b) the claimant gave the operator a notice of complaint in relation to the statement and
c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
For the purposes of [(a) above]
it is possible for a claimant to ldquoidentifyrdquo a person only if the claimant has sufficient information to bring proceedings against the person
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
FURTHER CONSIDERATIONS
The defence under this section is defeated
if the claimant shows that the operator of the website has
acted with malice in relation to the posting of the statement
concerned
bdquoThe defence under this section is not defeated
by reason only of the fact that the operator of the website
moderates the statements posted on it by others
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
VALID NOTICE OF COMPLAINT TO CONTAIN THE
FOLLOWING
bull name and email address of the complainant
bull URL or location of the statement complained of
bull an explanation of what the statement says and why it is defamatory of the complainant
bull meaning the complainant attributes to the statement complained of
bull aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact
bull confirmation that the complainant does not have sufficient information about the author to bring proceedings against them
bull confirmation of whether the complainant consents to his name and email address being provided to the poster
See S5 and Regulation 2
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
IF NOTICE IS MISSING ANY ELEMENTS
website operator can reject it
provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice
It need not explain why the notice received is deficient
Requirements do not set a legal threshold
The complainant need not be correct either in law or in fact
for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse
more than simply asserting that the words are defamatory
Where the complainant is a company
it will also need to explain why the material complained of has caused or is likely to cause serious financial loss
Paragraph 11 of the guidance and is implicit in definition of defamatory provided by Section 1 Defamation Act
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
48 HOUR TIME PERIODS FOR WEBSITE
OPERATORS (NOT WEEKENDS AND BANK HOLIDAYS)
Such time periods apply to each stage in the process where the website operator has to do something
Eg Google receives a complaint at 5pm Friday
must by 5pm Tuesday acknowledge receipt of the complaint and
either pass it on to the poster with details about S5 procedure
or reject the notice as deficient
The poster has until 5th day (including non-business days)
following receipt of the website operators notice
to reply and provide full contact details
if he wishes the material to continue to be published
Open to the website operator to argue at some later date
good reasons why a failure to comply with time periods should not prevent it from relying on the Section 5 defence
website operators may have some slippage but uncertain until a judge exercises discretion on that issue ndash 2015
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
NOTICES MUST BE IN WRITING AND WEBSITE
OPERATORS ARE ENCOURAGED TO PROVIDE A
MEANS FOR NOTICES TO BE SENT ELECTRONICALLY
Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address
Section 5 procedure does not specify any such requirement
Given the short time limits for action imposed on website operators
strong case for insisting that notices must be sent electronically
to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty
In practice the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
CLARITY OR A RED HERRING
Defences provided by
Section 1 of the Defamation Act 1996
Regulation 19 of the E-Commerce Regulations 2002
traditional defences to libel truth and honest comment
Potential cases where
claimants notice of complaint matches Section 5
does not demonstrate a legal course of action in libel
eg S1 DA2013 serious harm threshold is not met
Also cases where notice of unlawful for Reg19
but Claimant has not ticked all the boxes for Section 5
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
REG19 ECR S1 DA96 S5 DA13 TANDEM
AND new Section 10 of the Act
knock-out blow where reasonably practicable to bring
an action against the author editor or publisher
Websites rely on this even with anonymous poster
if a Norwich Pharmacal Order would reveal the poster
although this is an area of considerable uncertainty
S5 strengthened the position of website operators
but complex law in rapidly developing area
MOJs guidance must be simplified to avoid confusion
See flow chart
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
ldquoSIGNIFICANT DISCUSSION WITHIN GOVERNMENT
AND BETWEEN THE PARTIES ON THIS ISSUErdquo
[19 April] Government amendments
lsquoMicro-businesses 7A (1) A person who in carrying
on a micro-business publishes news-related material
where either condition A or condition B is met
(2) Condition A is that the news-related material is
contained in a multi-author blog
(3) Condition B is that the news-related material is
published on an incidental basis that is relevant to the
main activities of the business
(4) ldquoMicro-businessrdquo (a) has fewer than 10
employees (b) annual turnover gtpound2000000
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
SOTIRIS PAPASAVVAS CASE C-29113
PENDING AT CJEU
Bearing in mind that [national defamation] laws
affect the capacity to provide information services by
electronic means both at national and EU level
might those [defamation] laws be regarded as
restrictions on the provision of information services for
the purposes of applying Directive 200031EC
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DELFI AS V ESTONIA (APPLICATION NO 6456909)
10 OCTOBER 2013 ndashFINAL OF 10 JANUARY 2014
European Court of Human Rights unanimously
making Internet news portal liable for offensive online
comments of its readers was justified
offensive comments posted by readers below online
news
The portal complained that being held liable for the
comments of its readers breached Article 10
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DELFI AS OWN LARGEST ESTONIAN NEWS
WEBSITES
Jan 2006 Delfi published article about a ferry company
Which changed the route its ferries took to certain islands
caused ice to break meant ice roads postponed for week
cheaper faster connection compared to ferry services
Many readers offensive or threatening posts re ferry
operator
Sued Delfi in April 2006 obtained a judgment June 2008
Appeal dismissed by Estonia Supreme Court June 2009
finding Delfi exercised control over publication of comments
Delfi complained to ECHR on 4 December 2009
Relying on Article 10
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DECISION OF THE COURT ARTICLE 10
Delfi 200031EC transposed into Estonian law
limited liability for defamatory comments of its readers
Domestic courts resolve interpretation of law
ECtHR did not address the position under EU law
Interference with Delfi Art10 lawful
complied prescribed by law requirement under ECHR
Article 10 limited to protect a persons reputation
if interference proportionate in the circumstances
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
ECTHR FOUR KEY ISSUES IN
PROPORTIONALITY1 Posts comments insulting threatening defamatory
1 company should have expected offensive posts and
exercised extra caution to avoid being held liable
2 Action by Delfi to prevent defamatory comments
1 Authors liable threatening insulting comments not allowed
2 automatically deleted vulgar posts abuse button to complain
3 BUT warnings failed to prevent many insulting comments not
removed expeditiously by automatic filtering or NTD system
3 Actual authors of the comments could be made liable
1 rather than Delfi but identity of authors difficult to establish
as readers were allowed to make anonymous comments
2 Delfi legal responsibility practical AND reasonable
1 Delfi received commercial benefit from comments being made
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
FINAL POINT AND DECISION
Sanctions imposed by Estonian courts Delfi euro320 fine
No orders about how the portal should protect rights
that might limit free speech
Court held that making Delfi liable for the comments
justified and proportionate interference
no violation of Article 10
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
WORST ECTHR DECISION EVER
Completely inconsistent with 200031EC
Estonian govt had failed ndash CJEU must sort this outhellip
Court recounts that Government considered
Statersquos enacting of a regulation providing for mandatory
identification of commentators on an Internet portal
would constitute an excessive interference
How does that fit with UK regime
Not mandatory to reveal identities under Defamation Act
2013
although failure leaves website owners open to penalties
but what about Norwich Pharmacal orders
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
ECTHR AND CJEU
Charter of Fundamental Rights 2010
ECtHR caselaw is incorporated as precedent for EU
Important for following concepts
Freedom of expression and filtering
Powers of the media
Right to access Internet without filters
Privacy and personal data
Definition of personal data
Anonymity and proportionate response
Interference by state ndash or private actor
Horizontal effects when ISPs monitor
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
INTERMEDIARY LIABILITY AND
COPYRIGHT
Quick race through the cases
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
TWENTIETH CENTURY FOX V BRITISH
TELECOMMUNICATIONS [2011] EWHC 198
20C Fox v BT held that English Court had
jurisdiction
appropriate blocking order against BT re Newzbin2
20C Fox v BT (No 2) [2011] EWHC 2714 terms of
order
sequel to successful claim against Newzbin Ltd almost
identical website to Newzbin2
Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608
Newzbin1 ceased Newzbin2 commenced same
location
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DRAMATICO ENTERTAINMENT V BSKYB
[2012] EWHC 268
BPIPPL applied for website-blocking order against
The Pirate Bay Held both users and operators of Pirate Bay infringe UK
copyrights
Orders in Dramatico v Sky (No 2)
[2012] EWHC 1152 (Ch) [2012] 3 CMLR 15
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
FOX (MURDOCH) V SKY (MURDOCH)
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
EMI RECORDS LTD amp OTHERS V BRITISH SKY
BROADCASTING LTD amp OTHERS [2013] EWHC 379
(CH) PER ARNOLD J
Golden Eye Ltd v Telefoacutenica UK [2012] EWHC 723
(Ch)
two reasons to consider proportionality of orders
Art3(2) Directive 200448EC
general obligation to consider proportionality of
remedies for IPR infringement
LOreacuteal v eBay at [139]-[144]
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
CJEU NATIONAL COURTS MUST STRIKE A
FAIR BALANCE BETWEEN
IPRs protection Art17(2) Charter of Fundamental
Rights of EU
protection of individual rights in applicable Charter
Articles
C-27506 Promusicae v Telefoacutenica [2008] ECR I-271
C-7010 Scarlet Extended SA v SABAM [2011] [2012]
ECDR 4
Case C-36010 SABAM v Netlog NV [2012] [2012] 2
CMLR 18
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
APPROACH TO PROPORTIONALITY IN GOLDEN
EYE
1 ldquoCopyrights are property rights protected by Art1
1st Protocol ECHR amp IPRs Art17(2) Charter
2 Right to privacy Art 8(1) ECHRArt7-8 Charter
3 Copyrights rights of othersrsquo
Art8(2)ECHRArt52(1)Chart
4 Lord Steyn in Re S [2004] UKHL 47 [2005] 1 AC
593
1 is also applicable where a balance falls to be struck
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
RE S PROPORTIONALITY APPROACH IS AS
FOLLOWS
(i) neither Article as such has precedence over the
other
(ii) where values under two Articles are in conflict an
intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary
(iii) justifications for interferingrestricting each taken
into account
(iv) proportionality test (ultimate balancing testlsquo)
applied to eachrdquo
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
RUGBY FOOTBALL UNION V VIAGOGO [2012]
UKSC 55
Per Lord Kerr
rights engaged by the orders sought by the
Claimants are
freedom of expression Article 10 ECHR Art11
Charter
(a) the Defendants
(b) the operators of the Websites and
(c) the users of the Websites
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
COST IS A FACTOR IN PROPORTIONALITY
Cost of compliance is modest
20C Fox v BT at [200] and
20C Fox v BT (No 2) at [32]
No ISP appealed against any of the blocking orders
ldquoDramatico v Sky (No 2) and in present caseshellip
No Defendant has sought to resist the making of the
orders
on the grounds that compliance will be unduly
burdensome or costlyrdquo
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
EASE OF CIRCUMVENTION IN PROPORTIONALITY
Blocking order may be justified even if it only
prevents access by a minority of users
20C Fox v BT [192-198]
efficacy depends on the precise form of the order
orders in Dramatico v Sky less easy to circumvent than
original order made in 20C Fox v BT (No 2)
Evidence blocking orders reasonably effective
Italy Pirate Bay decline of 73 access 96 page views
England Pirate Bay
19 December 2011 Pirate Bay ranked No43 by Alexa in UK
21 November 2012 UK ranking No293
But note many mirror sites so is this really evidence
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
HAVING CONSIDERED THE PROPORTIONALITY
OF THE ORDERS SOUGHT
Necessary and appropriate to protect Claimants IPR
(and other copyright owners)
clearly outweigh Charter Art11 rights of users of Websites
who can obtain copyright works from many lawful sources
even more clearly outweigh rights of website operators
profiting from infringement on an industrial scale
Outweigh Defendants Art11 rights to extent engaged
Orders narrow and targeted contain safeguards in the event
of any change of circumstances
cost of implementation to Defendants modest proportionate
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
UPC TELEKABEL WIEN V CONSTANTIN FILM
C-31412 - PENDING
Advocate Generalrsquos Opinion 26 November 2013
incompatible to prohibit ISP generally and
without ordering specific measures from allowing
customers to access website that infringes copyright
also where provider taken all reasonable steps
national courts weigh fundamental rights strike fair
balance
Note potentially many similar cases before courts
rightholders must in so far as possible
claim directly against illegal website or providers httpcuriaeuropaeujcmsuploaddocsapplicationpdf2013-
11cp130149enpdf
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
CONNECTEDCONTINENT REGULATION
Under consideration in 2014 in the European
institutions
Donrsquot expect a Regulation any time soon
UK Government broadly opposed
New Commission and EParliament likely to become
involved
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
NET NEUTRALITY CONTROVERSIAL (AS IS
ABOLISHING MOBILE ROAMING)
2009 Directives laid down optional approach
UK chose to opt out of enforcement
Result UK ISPs censor and block at will
Ofcom acknowledges problems
Tested ISP speeds for years with SamKnows
httpmediaofcomorguk20130807average-uk-
broadband-speed-continues-to-rise
As do many others BEREC results (2012)
Overleaf graphic of self-testing
Hence new approach mandating no blocking
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
THE PROBLEM IN A GRAPHIC
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
250 fixed and 150 mobile operators
25 claimed ldquosecurity and integrityrdquo concerns
eg controlling ldquospamrdquo traffic
ldquoapplication-agnosticrdquo approach eg buffering
OR ldquoapplication-specificrdquo techniques
throttle specific traffic such as video streaming
33 of fixed operators managed their networks
offer specialised services (eg telephony or TV)
alongside a best efforts Internet access service
ldquoblocking of VoIP and P2P traffic is common other practices vary widelyrdquo
httpergeuintdoc2012TMI_press_releasepdf
BEREC PRELIMINARY FINDINGS 9 MARCH 2012
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
DIRECTIVE 2009136EC
New Articles 20 and 22 Recital 26
Consumer protectioncitizen rights NOT SMP httpeur-
lexeuropaeuLexUriServLexUriServdouri=OJL200933700
110036ENPDF
Requirements to notify customers amp NRAs
But will need civil society activists
To detect discrimination
To notify higher-end consumers of problems
Added to interoperability requirements
Article 5 Interconnection Directive
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
Commission attaches high importance to preserving the open and neutral character of the Internet
to enshrine net neutrality as a policy objective
regulatory principle to be promoted by NRAs Article 8(4)(g) Framework Directive
strengthening transparency requirements USD Articles 20(1)(b) and 21(3)(c) and (d)
safeguard NRA powers to prevent service degradation hindering or slowing down of traffic over public networks USD Article 22(3)
NEUTRALITY DECLARATION
2009140EC
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
the implementation of provisions in the Member States
introducing a particular focus on how the lsquonet freedomsrsquo of European citizens are being safeguarded
in its annual Progress Report to Parliament
impact of market and technological developments on lsquonet freedomsrsquo
will invoke existing competition law powers
to deal with anti-competitive practices
COMMISSION WILL MONITOR CLOSELY
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
[1] EC is not leading in evidence gathering ndash BEREC
At the end of 2011 I will publish the results including any instances
of blocking or throttling certain types of trafficldquo
Actually published mid-212
[2] If that produces evidence of widespread infringement -recommend setting EU guidance rules
more stringent measures[in] the form of guidance
[3] If this proves to be insufficient I am ready to prohibit the
blocking of lawful services or applicationsrdquo
Hence ConnectedContinent Regulation proposed
KROES BEREC GIVEN KEY ROLE BY EC
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
NET NEUTRALITY LAWS 2013 UPDATE
19 December 2012 Slovenia net neutrality law
1 January 2013 Netherlands to enforce 2012 law
March 2013 France proposes net neutrality law
And search neutrality lsquoall intermediariesrsquo
That would be 4th country in Europe
Finland via universal service
Netherlands after mobile WhatsApp blocking
Slovenia
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
OFCOM NET NEUTRALITY STATEMENT 2011
Very odd if detailed document
Ofcom expects ISPs to play fair
Hopes they donrsquot block or throttle
But no regulatory consequences if they donrsquot
No intention to apply 2009 European law
Which in any case was optional
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
COM(2013) 627 FINAL 20130309
Proposal for a Regulation laying down measures
concerning the European single market for electronic
communications
and to achieve a Connected Continent
and amending
Directives 200220EC 200221EC and 200222EC
Regulations (EC) No 12112009 and (EU) No 5312012
QUESTIONS
ChrisTMarsden
QUESTIONS
ChrisTMarsden
Related Documents
