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Czech Case law, Czech law

ISP liability for third party provided content in the Czech case law

The intermediary liability is governed by the E-Commerce directive 31/2000/EC and incorporated into the Czech law by the Act n. 480/2004 Coll., the information society services.

The implementation of Art. 12 and 13 in respect of mere conduit and caching is in full compliance with the E-commerce directive wording (Art. 3 and 4 of the Act). What is different is the liability for hosting. Article 14 of the Directive states that where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(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 or information is apparent; or

 (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

Article 5 of the Act changes the negative condition into the positive wording. Under certain conditions this shall result into the same conclusion, in this case the liability seems to be stricter in the sense that even prior the notification the ISP is liable.

Article 15 – No general obligation to monitor is implemented also in compliance with the Directive (see Art. 6 of the Act).

The first case concerning the liability of ISP of the hosting type occurred in 2010. The e-publisher provided an open discussion under the article that informed about the malpractice of one real estate agent. The discussion contained the words “pig, shit” in connection with the claimant. The Court stated that the ISP is not liable until it receives the concrete notification. It is liable if it does not take down the content that breach the personality rights. In this case the use of the word was excessive. The Court of Appeal 3 Cmo 197/2010

The publisher of the print newspaper allows a free discussion under the articles in the e-form of the newspaper. Under the article about the Czech citizen who tried to emigrate and sued the state occurred the discussion that had a racist connotation. The ISP was sued that after the notification the publisher took the racist content after 10 days. The Court stated that 10 days is not proportionate. The Court of Appeal 3 Co 135/2011

The publisher in another case concerning the same claimant but different discussion racist post did take down the relevant post 3 day after the notification. The Court stated that this period is proportionate. 34 C 86/2011

The main issue for ISP liability in the Czech Republic is not to establish the liability and type of the ISP but the problem with notification. The Act does not state any precise requirement how the notification has to be done. So the notification could be done by phone, email or other form but must be precise and concrete enough to identify the post in complaint. The problem that occurs – what is the reasonable period for taking the post down if the content is clearly and manifestly illegal, has so far been subject of the Court decisions but there is no exact criteria that the Court has to assess. So far the Court stated 10 days is not reasonable, 3 is reasonable. What the Court explained is that one of the relevant factor to decide is the nature of the ISP and whether has a potential of enough employee to manage it in reasonable time or not.

In 2012, the European Commission launched a public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries but in respect of the period of the time it stated that there is no need to establish the precise period and this decision depends on the circumstances.

The Czech Courts have  not so far decided in cases when the content is not manifestly illegal. The case law of the Germany in this area might be relevant due to its similarities: Der Bundesgerichtshof (The Federal Court of Justice of Germany) VI ZR 93/10, 25.10.2011 in case Google Inc. (blog) v unnamed individual.

 

 

 

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About ondrejovae

Czech Attorney/Barrister located in Prague with specialization in media law and protection of personal rights

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