WILMAP: Slovakia

SUMMARY (provided by Martin Husovec): (1) Slovak law has a very small experience with application of the general tort law principles to on-line intermediaries. Most of the decided or pending cases concern instances of online defamation. There is no special liability basis for intermediaries. Safe harbors of e-Commerce directive can especially bar application of the general tort law in cases where wrongful omission could have been established. 

 
(2) General tort law establishes direct liability of an intermediary when he himself or with his co-tortfeasors fulfills all the elements of a tort by infringing the right of others. This qualification depends on the right that is being infringed, and can be different for different fields of law, e.g. personality rights infringement and copyright infringement can treat an intermediary differently. Own content of an intermediary would usually lead to a direct liability. 
 
(3) If the intermediary did not act as a direct infringer, he can be liable under one of the following legal institutions: (i) accessory liability (liability as a participant), (ii) vicarious liability (§ 420(2) Civil Code), (iii) wrongful omission (§§ 415, 420 Civil Code + absolute right at stake). 
 
(4) Unlike in criminal law, accessory liability is not well-developed in Slovak civil law. The courts seldom distinguish it from other basis of liability. The inspiration of the principles upon which it is based hence comes mainly from criminal law. This requires intentional assistance of third parties in wrongful acts of others. Nevertheless, it is possible that accessory liability under civil law could develop into a more broad concept, where also negligence would suffice. At this point, however, there are no signs of such a move in case law. 
 
(5) Vicarious liability under § 420(2) of the Civil Code can apply only to a small number of cases. Under this provision the damage shall be considered caused by a legal entity or also by an individual if they were caused in the course of their activity by those who were used in such activity. These persons themselves shall not be liable for the damage caused in this way. Slovak courts so far did not apply the provision to any intermediary scenario. 
 
(6) Wrongful omission is probably the most important basis of civil liability in the context of intermediaries. Despite virtually no case law, the law enables to hold negligent omission of intermediaries wrongful and attach a liability to such inactivity provided that certain standard of duty of care is breached. 
 
(7) It is worth mentioning that the Slovak safe harboring system is of very inferior quality. The law implementing the e-Commerce directive was adopted in the period of entry of Slovak to European Union, when thousands of acts were very quickly passed to satisfy the Union law. The main problems are extension of actual knowledge requirement also to mere conduits and caching providers, wording of prohibition of the general monitoring obligation that borders with nonsense and narrow definition of the hosting activities. Slovak implementation also drops constructive knowledge standards. Most of the issues are possible to overcome with interpretation in accordance with the Union law. Contrary to what was reported in the EU study, Slovak law has no special rules on notice and takedown procedures. 
 
(8) Injunctions can be issued against intermediaries even if they are not infringing on the rights of others. In the field of intellectual property law, the implementation of Art. 11 of the Enforcement Directive and Art. 8(3) of the InfoSoc Directive enables this. The relevant provisions are incorporated in the individual intellectual property rights laws (e.g. Copyright Act, Design Law Act, etc.). It is not yet clarified if the same is possible in the field of personality rights and unfair competition law.]

LEGISLATION

Law No. 22/2004, December 3, 2003, on Electronic Commerce
 
[The Act implements e-Commerce Directive into Slovak law incorporating mere conduit, caching and hosting safe harbors, and prohibition of general monitoring obligation (§ 6). The implementation is of very inferior quality and misimplements several mechanisms that are most of the time possible to correct by the interpretation.]
 
Law No. 40/1964, February 26, 1964, Civil Code
 
[The Civil Code provides for all general tort law basis for liability including vicarious liability, wrongful omission, liability as a participant, etc.  It regulates substantial part of the private law. Intellectual property rights are regulated by special acts.]

DECISIONS

Superior Courts

Supreme Court [Najvyšší súd SR], Civil, BMW v. SK-NIC, 3 Obo 197/06, May 12, 2007
[domain name authority, trade mark infringement, liability]
 
[The Court rejected a delictual cease and desist claim against the domain authority arguing that it is not liable for registrations carried out by the third parties. The court does not provide extensive explanation for this and neither does it discuss an alternative basis of secondary liability. It can be also argued that this decision is not a good example because the claim that was rejected, although having basis in the delict law, was formulated more as a concrete contractual act that the domain name authority should carry out (withdrawal). Hence the consequences of the decision remain mostly open.] [see also Huťko´s Technology Law blog post]

 

Lower Courts

Court of Appeals [Krajský súd Trenčín], Civil, Stacho v. Klub Strážov, 19Co/35/2012, April 26, 2012
[discussion forum provider, defamation, third party comments, hosting safe harbor]
 
[The Court denied liability of the discussion forum provider for libelous comments of unknown users. The provider was sued without previous notice and takedown request. Although the first instance Court held the provider liable for users comments, without explaining the basis of such liability, the Court of Appeals rejected this because the provider did not act against the right of the plaintiff himself. The Court did not discuss liability for wrongful omission or liability to serve injunctions as a non-infringer. The case was appealed further to the Supreme Court, where it is currently pending.]

OTHER RESOURCES

European Information Society Institute, www.eisionline.org 
Hutko's Technology Law Blog, www.husovec.eu
Lexforum.sk, www.lexforum.sk
Blog priateľov EISi [Blog of friends of EISi], www.blog.eisionline.org 

CONTRIBUTORS

Martin Husovec
Email: martin at husovec.eu

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