WILMAP: Netherlands

LEGISLATION

Legislative Decree Stb. 2007, 108, March 8, 2007, Law implementing Enforcement Directive (2004/48/EC); Article 26d Dutch Copyright Act
 
[Article 26d of the Dutch Copyright Act contains a rule that allows courts to subject an intermediary to an injunction without the intermediary having to commit a tort. The article reads: “At the request of the author, the court can order intermediaries whose services are used by third-parties to infringe on copyright, to stop providing the services that are used to infringe.” It thus provides a basis for a particular type of injunction that is independent from any liability under tort law. According to the Explanatory Memorandum to this article, courts do have to take into account the degree in which the intermediary is involved in the infringement, and the proportionality between the court order’s aim and the loss or damage that is suffered by the intermediary as a consequence of the court order.  If the copyright-holder can just as well sue the infringer, then the court should reject the request].
 
Legislative Decree Stb. 2004, 210, May 25, 2004, Law implementing E-Commerce Directive (2000/31/EC); Article 6:196c Dutch Civil Code [English version]
 
[This law implemented the E-Commerce Directive into Dutch law, including an almost verbatim implementation of the limitations on liability of Articles 12 to 14 of the Directive. It added a new article to the Dutch Civil Code (DCC) in a section that deals with Dutch tort law. Section 6:196c DCC lists the limitations on liability subsections (1) to (4). Section 6:196c(5) indicates that the limitations on liability do not preclude the possibility of injunctions. The instruction to EU Member States that they shall not impose general monitoring obligations (Article 15 of the E-Commerce Directive) did not lead to changes in the DCC].
 
 
[Article 6:162 DCC is the general basis for claims for damages that arise from torts. On the basis of 6:162(1) DCC, “a person who commits a tort towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.” Article 6:162(2) DCC provides three categories of torts that need to be repaired. These types of acts are considered ‘onrechtmatig’ (unlawful). The first category of acts is that of a breach of right. An example of such a right is a property right. The second category is that of acts or omissions that violate a statutory duty. This may be the case when a written rule of unfair competition is violated and a competitor of the tortfeasor suffers damage from this violation. The third category relates to acts or omissions that violate a “rule of unwritten law pertaining to proper social conduct”. This last category enables to import all kinds of duties of care. It is this category of tort that is often used to hold intermediaries liable].
 
 
[Under Dutch law, injunctions are based on Article 3:296 DCC, which indicates that if someone is obligated to give, to do, or to refrain from doing something towards another, he is ordered so by court. On the basis of this article, intermediaries that commit a tort can be obligated to do or refrain from doing something].
 

SELF-REGULATION

 
[The Dutch government, businesses and interest groups created a code of conduct on  'notice and takedown.' The code contains a procedure to deal with requests to take down content. Endorsement of the code is voluntary. Internet access provider KPN, the Dutch Hosting Service Provider Association, NLKabel (an association of cable network providers). Service providers that are more involved with the provision of content, such as Google and Marktplaats/eBay endorsed the code. Brein, which represents the entertainment industry, has also endorsed the code of conduct].

DECISIONS

Superior Courts

Hoge Raad [Dutch Supreme Court], Civil law, Lycos v. Pessers, ECLI:NL:HR:2005:AU4019, 25 November 2005
[hosting provider, defamation, disclosure of personal data, duty of care]
 
[The Dutch Supreme Court confirmed a Court of Appeals decision holding that even when a hosting provider itself does not commit a tort by refusing to delete defamatory information on a website, the hosting provider can still act unlawfully by not providing personal data of the author of that information to the person harmed by the information. Lower courts in later cases have applied this standard to service providers in cases of copyright infringement.]

 

Court of Appeals

Gerechtshof Den Haag [Court of Appeals Den Haag], Civil law, Ziggo and XS4ALL v. BREIN, ECLI:NL:GHDHA:2014:88, January 28, 2014
[blocking order, ISPs, torrent site, unproportionate]
 
[The Court of Appeals stroke through the decision of the District Court of Den Haag, which held that Internet access providers Ziggo and XS4ALL had to block access to the website of The Pirate Bay. The Court of Appeals held that the blockade was not effective and proportionate.]
 
Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, GS Media v. Sanoma, ECLI:NL:GHAMS:2013:4019, November 19, 2013
[linking, copyright law, communication to the public, tort law]
 
[The case is about leaked nude photographs of Dutch television-personality Britt Dekker that had yet to appear in Playboy magazine. An unknown person had stored the photographs online with Filefactory’s hosting service. Dutch entertainment website Geenstijl had posted a link to the file containing the photographs. The Court of Appeals of Amsterdam held that linking to copyright-protected material that is available on the web elsewhere is no different from a footnote referring to earlier published works. In principle, linking to copyright-protected works on the web does not communicate those works to the public and does not constitute a copyright infringement. This may be different if the works were untraceable and inaccessible to the public before the intervention. Although Geenstijl was not held liable for copyright infringement, Geenstijl was held liable under tort law for facilitating access to the leaked photographs.]
 
Gerechtshof Leeuwarden [Court of Appeals Leeuwarden], Civil law, Stokke v. Marktplaats, ECLI:NL:GHLEE:2012:BW6296, May 22, 2012 
[online marketplace, advertisement, copyright infringement, hosting exemption]
[Online marketplace Marktplaats is covered by the hosting safe harbor provision in Article 6:196c(4) of the Dutch Civil Code with regard to copyright infringing advertisements. The Court of Appeals held that a service provider is neutral when it provides its service without prejudice to all its users. The fact that an intermediary acquires knowledge through a notification or through the monitoring of its website for unlawful and unwanted information does not imply that the intermediary loses its neutral position.]
 
Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, Shareconnector v. Brein, ECLI:NL:GHAMS:2010:BL7920, March 16, 2010
[peer-to-peer file sharing, hash codes, copyright law, tort law]
 
[The website operator in question had created a website that listed, verified and categorized hash codes that could be used to download copyright protected works on the e-Donkey peer-to-peer file sharing network. These hash codes identified the content of a digital file and could be used to download files available on the peer-to-peer network through peer-to-peer file sharing software. The Court of Appeals considered that the operator did not have digital files at its disposal, nor did the operator play a role in the transmission of files. The Court held that the operator was not liable for copyright infringement as the operator did not communicate copyright-protected works to the public. However, the operator was held liable under tort law for systematically and structurally facilitating the use and presumed uploading of copyrighted materials.] 
 
Gerechtshof Arnhem [Court of Appeals Arnhem], Civil law, NVM v. Alletekoopstaandehuizen.NL, ECLI:NL:GHARN:2006:AY0089, July 4, 2006
[search engine, deep linking, copyright law, communication to the public]
 
[This case is about the liability of an operator of a search engine that offered information on houses for sale. The search engine provided deep links into the websites of the brokers that houses for sale. The brokers argued that these deep links were communications to the public of their copyright-protected materials. The Court of Appeals rejected the claim for copyright infringement. While the brokers had implemented technical measures to prevent deep links from functioning, deep linking to their materials did not constitute a communication to the public of their works.] 
 
Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, Brein v. Techno Design, ECLI:NL:GHAMS:2006:AX7579, June 15, 2006
[search engine, mp3 files, tort law]
 
[This case deals with the liability of an operator of a search engine for MP3-files stored on other locations on the Internet. The Court of Appeals held the search engine operator liable for systematically and structurally referring to unauthorized communications to the public of copyright protected MP3-files.]
 
Gerechtshof Amsterdam [Court of Appeals Amsterdam], Civil law, KaZaA v. Buma/Stemra, ECLI:NL:GHAMS:2002:AE0805, March 28, 2002
[peer-to-peer file sharing software, copyright law]
 
[KaZaA offered peer-to-peer file sharing software that could be used to share all kinds of computer files, including music files. The KaZaA-network was a decentralized network that made use of so called “supernodes” that mediated communication between KaZaA-users. Collective rights management organization Buma/Stemra had argued that KaZaA’s software was used to infringe on copyrights on musical works. After failed negotiations on a licensing-deal, the District Court had ordered KaZaA to take measures to prevent the sharing of music files through KaZaA’s software. However, on appeal, the Court of Appeals of Amsterdam held that KaZaA was unable to take such measures. In an obiter dictum, the Court of Appeals noted that KaZaA, by offering its software, did not infringe on copyrights. If copyrights were infringed, then it must have been KaZaA’s users who infringed on the exclusive rights regarding the musical works. The Court assumed that KaZaA was not used exclusively to infringe on copyrights. Both KaZaA and an expert pointed at a great number of  materials that were authorized, in the public domain, or of which the use was covered covered by an exception in Dutch copyright law. While Buma/Stemra had argued that the purpose of the software was to allow users to engage in sharing of copyright-protected materials, the Court noted that Buma/Stemra had not presented any evidence of this. In sum, the Court saw no reason to accept Buma/Stemra’s contentions, and argued that KaZaA did not act unlawfully by offering its file sharing software. Buma/Stemra appealed against the decision before the Dutch Supreme Court but failed to state a claim on the basis of which the Supreme Court could annul the Court of Appeal’s decision (see: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2003:AN7253). Therefore, the Court of Appeal’s decision still stands.]

 

Lower Courts

Rechtbank Amsterdam [District Court Amsterdam], Civil law, X. v. Facebook, ECLI:NL:RBAMS:2015:3984, June 25, 2015
[disclosure of personal data, revenge porn, hosting provider, facebook, duty of care]
 
[(1) The Amsterdam District Court ruled that Facebook has a duty to identify a person who has uploaded a revenge porn video on its social network. 
 
(2) In this case, the video displays a woman, Chantal, performing oral sex on her now ex-boyfriend. A fake account bearing Chantal’s name was created and used to share the private video with her friends and others. Chantal’s ex-boyfriend, who recorded the video, has always denied uploading the video. Although Facebook removed the video within one hour, the video had already found its way online and is still being shared.
 
(3) Chantal went to court and claimed release of information identifying the person who created the fake account and uploaded the video. The Lower Court of Amsterdam today ruled against Facebook. According to the Court, Facebook acted unlawfully by not releasing the information. A duty to release such information exists if someone can only stop unlawful actions of another through the release of personal data by the provider.
 
(4) Although Facebook argued that it no longer possesses the requested information, the Court has doubts whether that actually is the case. The Court therefore ordered Facebook to release any information relating to the owner of the fake account. In case Facebook is unable to release such information, the company should allow an independent third-party to investigate whether Facebook had or still has the information, and what that information entailed or entails.] [See also Stanford CIS blog post]
 
Rechtbank Amsterdam [District Court Amsterdam], Civil law, Kim Holland Productions v. 123Video, ECLI:NL:RBAMS:2010:BP6880, November 24, 2010
[copyright law, video hosting platform, communication to the public]
 
[This case deals with the liability of the operator of video hosting platform 123video.nl, which stored, converted and categorized videos uploaded by its users. The videos in question were of pornographic nature and were uploaded by users without authorization of the copyright-owner. The District Court of Amsterdam held that the operator communicated the uploaded videos to the public and therefore infringed on Kim Holland Production’s copyrights. The Court came to this conclusion because of the operator’s active, mainly automated, involvement in the uploaded content. The operator, for instance, had created a separate category for ‘xxx’ videos, and moved all videos of pornographic nature to this category. Uploaded videos were converted to Flash-video-format, and displayed within the framework of 123video.nl. Moreover, the intermediary generated income through its video hosting platform. The hosting safe harbor of Article 6:196c(4) Dutch Civil Code did not protect the operator from liability.]
 
Rechtbank Utrecht [District Court Utrecht], Civil law, Brein v. Mininova, ECLI:NL:RBUTR:2009:BJ6008, August 26, 2009
[copyright law, peer-to-peer file sharing, torrents, tort law]
 
[This case dealt with the liability of a website operator that stored and made available torrent-files on his website. The District Court held that the storing of torrent-files is not a communication to the public and thus not a copyright infringement. The operator was held liable under tort law for structurally facilitating copyright infringements of its users. Because the operator of the torrent-website categorized the torrent-files, removed files that violated the website’s rules, gave advice on how to download files and incidentally uploaded files himself, the operator was not shielded from liability on the basis of the hosting safe harbor of Article 6:196c(4) of the Dutch Civil Code.]

CONTRIBUTORS

Stefan Kulk
Ph.D. researcher, Centre for Intellectual Property Law, Utrecht University
Email: s.kulk at uu.nl

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