WILMAP: Spain

LEGISLATION

Spanish Criminal Code, as amended by Law 1/2015 of March 30, 2015.

[Law 1/2015 amends the Criminal Code:

(1) broadening the definition of copyright criminal offense to include any act of exploitation, and no longer limited to acts of reproduction, plagiarism, distribution, and communication to the public; 

(2) when certain conditions are met, the information service providers’ active facilitation to access or locate copyrighted works that are made unlawfully available on the internet will be considered a criminal offense 

(See Articles 151-152, amending Articles 270-271 of the Criminal Code)].

 

Spanish Copyright Act, as amended by Law 21/2014 of November 4, 2014.

[(1) implementing the EU InfoSoc Directive mandatory exception for temporary acts of reproduction which are transient or incidental, have no independent economic significance, and are an integral and essential part of a technological process whose sole purpose is to enable (a) a transmission in a network among third parties by an intermediary, or (b) a lawful use (art. 31.1);

(2) providing that copyright owners may ask for injunctions, where appropriate, against an intermediary whose services are resorted to by a third party to infringe copyright, even where the intermediary’s activity is not infringing in itself (arts. 138, 139.1.h, 141.6);

(3) creating an administrative body – the Second Section of the Intellectual Property Commission – which may order injunctions against information society services who infringe on copyright, particularly websites providing links to infringing works in a purposeful and massive way; it may also require payment, advertising, and access service providers to stop providing their services to the infringer (arts. 158 and 158 ter);

(4) creating a compulsory levy on news aggregators (art. 32); 

(5) establishing inducement, contributory and vicarious liability for copyright infringements (art. 138).]

[See also CIS Blog]

 

Civil Procedure Act, as amended by Law 21/2014 of November 4, 2014

[providing that ISPs could be obliged in some situations to reveal the identity of a subscriber who allegedly engages in copyright infringement (art. 256).] 

 

Law No. 34/2002, on Information Society Services and Electronic Commerce, of July 11, 2002 

[The Law implements the liability limitations set forth in the eCommerce Directive:

(1) exemptions for mere conduit (art. 14) and caching (art. 15) are implemented almost verbatim;

(2) the hosting safe harbor provision (art. 16) doesn’t mention the awareness of “facts or circumstances from which the illegal activity or information is apparent”, and it appears to limit the notion of actual knowledge to specific situations (mainly the existence of a prior decision on the illegality of the hosted material), however, the Supreme Court declared that this should be read in a non-restrictive way;

(3) a specific exemption for linking is included (art. 17);

(4) no mention is made to the possibility of injunctions or to the prohibition of general monitoring obligations;

(5) some duties to cooperate with law enforcement authorities are imposed on intermediaries (arts. 8 and 11).]

 

Administrative Regulations

Regulatory Entity: Second Section of the Intellectual Property Commission

[The Law No. 2/2011 amended the Spanish Copyright Act to create an administrative body – the Second Section of the Intellectual Property Commission – which orders injunctions against information society services who infringe on copyright. Its functioning was later amended by Law No. 21/2014. The IP Commission targets particularly websites providing links to infringing works in a purposeful and massive way; it may also require payment, advertising, and access service providers to stop providing their services to the infringer (see above Spanish Copyright Act.]

 

Royal Decree No. 1889/2011, on the functions of the Intellectual Property Commission, December 30, 2011

[establishing the particular rules governing the functions of the Intellectual Property Commission, the Second Section of which has the power to issue administrative injunctions against information society service providers that infringe copyrights; in practice, this Section decides on claims for injunctions against websites providing links to infringing contents located in P2P networks or somewhere else in the Internet]. 

 

BILLS AND LEGISLATIVE PROPOSALS

Draft bill, February 18, 2014, to amend the Copyright Act and the Civil Procedural Act (passed into Law N. 21/2014, November 4, 2014)
 
[(1) proposing the enhancement of copyright enforcement mechanisms; (2) proposing an overhaul of the administrative procedure, established in art. 158 of the Copyright Act, against internet service providers (ISPs) who infringe copyrights, granting more powers to the Second Section of the Copyright Commission so it can require payment, advertising, and access service providers to stop providing their services to the ISP when it doesn’t voluntarily comply with the injunction issued; the Section could impose administrative fines to an ISP who repeatedly disobeys an injunction; (3) proposing that the administrative procedure targets at particular websites that provide links to apparently infringing works in a purposeful and massive way, even when the links have been submitted by the websites' users; In contrast, those who carry out mere technical intermediary activities would not be targeted; (4) proposing a levy on news aggregators, (5) proposing an amendment to introduce inducement, contributory and vicarious liability in the Copyright Act, (6) proposing that ISP could be obliged in some situations to reveal the identity of a subscriber who allegedly engages in copyright infringement.]
 
Bill N. 121/000065to amend the Spanish Criminal Code, September 24, 2013 
 
[Passed into Law No. 1/2015, March 30, 2015, entering into foce on July 1, 2015 (see above)].

DECISIONS

[Note: Decisions in Spain are not officially identified by parties’ names. Rather, they are simply identified by court, number and date. Moreover, in the official publication of the rulings, the names of individuals are usually anonymized due to privacy concerns. The names provided here – normally the main website involved – are meant just for illustration purposes]. 
 

Superior Courts

Supreme Court, Criminal Chamber, Youkioske.com, 920/2016, December 12, 2016 (ES:TS:2016:5309)

[linking, copyright, criminal infringement, communication to the public]

[holding two webmasters of a website liable for criminal copyright infringement; the website would offer links to access, via streaming, scanned full versions of newspapers, magazines and books; the files were hosted somewhere else; the court found that the site was engaging in a communication to the public according to the criteria set out by the CJEU in Svensson; there was “new public” as the website allowed access to the contents of the print edition without the need of buying it; the Supreme Court upheld the first instance ruling handed down by the Audiencia Nacional]

 

Supreme Court, Civil Chamber, IU Colmenar Viejo, 297/2016, May 5, 2016 (ES:TS:2016:1885)

[defamation, liability, hosting exemption, actual knowledge]

[holding the owner of a website – a political party’s local association – liable for third party defamatory comments posted to a website’s forum; the defendant carried out a moderation of the forum, but failed to prevent the obviously defamatory messages from being posted, while other comments favorable to the complainant were rejected; the appellate court was right in finding that the defendant had actual knowledge of the illegal content; the court cites the ECtHR case Delfi v Estonia]

 

Supreme Court, Civil Chamber, An individual v Google Spain, 210/2016, April 5, 2016 (ES:TS:2016:1280)

[right to be forgotten, damages, standing of Google’s local subsidiary]

[holding Google Spain SL liable for damages for failing to remove links to personal information after a “right to be forgotten” request by the claimant; damages were awarded following art. 19 of the Spanish Data Protection Law, which implements art. 23 of the Data Protection Directive (95/46) that orders Member States to “provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered.”; the court rejected the defendant’s contention that Google Spain – the local subsidiary – is not the data controller and thus lacks standing; however, in other cases, another Chamber of the court concedes Google Spain’s lack of standing to be sued]

 

Supreme Court, Civil Chamber, Meristation, 805/2013, Jan 7, 2014 (ES:TS:2014:68)

[defamation, liability, hosting exemption, actual knowledge]

[holding the owner of a website liable for third party defamatory comments posted to website’s fora; the defendant had some control mechanisms in place what failed to prevent the postings; the appellate court was right in finding that the defendant had actual knowledge of the illegal content, and that it failed to diligently remove the content; hence the defendant cannot rely on the hosting exemption from liability]

 

Supreme Court, Civil Chamber, Palomo v. Google, 144/2013, March 4, 2013 (ES:TS:2013:2245)

[defamation, liability, actual knowledge, linking exemption, search engine]

[holding Google and its CEO are not liable for the search engine’s links to pieces of news containing false accusations against an individual; defendants are shielded from liability by Art. 17 of the Spanish Information Society Services Act, which sets forth a safe harbor for information location tools; notices sent by the aggrieved person were not enough to trigger actual knowledge because the illegal character of the information was not obvious by itself and thus Google did not need to take the links down to benefit from the linking safe harbor].

 

Supreme Court, Civil Chamber, eleconomista.com, 128/2013, February 26, 2013 (ES:TS:2013:1441)

[defamation, liability, hosting exemption]

[holding a company running a digital newspaper liable for defamatory comments posted on its website by its users; the defendant should have taken more precautions and exert more control on the users’ comments; the defendant chose not to receive a notification which was not clearly addressed to site; in doing so it prevented the aggrieved person to inform the site about the defamation; the obvious defamatory nature of the comments is enough to trigger actual knowledge].

 

Supreme Court, Civil Chamber, merodeando.com, 742/2012, December 4, 2012 (ES:TS:2012:8307)

[defamation, liability, hosting exemption, linking exemption, freedom of expression]

[holding a blogger not liable for one of his posts and for the comments posted by users; the court found that both the blogger’s post – which linked to allegedly defamatory contents – and the comments posted by users did not amount to a defamation; while they contained harsh criticism against the claimant – the Spanish copyright collecting society, SGAE – they were protected by the right of freedom of expression; thus although the blogger had actual knowledge of the contents and chose not to remove them, no liability attaches because the contents were ultimately licit; the ruling reversed a previous judgment issued by a lower court holding the blogger liable]. 

 

Supreme Court, Civil Chamber, megakini.com, 172/2012, April 3, 2012 (ES:TS:2012:3942)

[copyright, fair use, three step test, caching exemption, linking exemption

[dismissing a copyright infringement claim brought by a website owner against Google; the Court of Appeals held that while Google’s acts of reproducing and making available a cached copy of the website were not covered by the caching or the linking safe harbor, nor by the temporary reproductions exemption, some general limits apply to copyright owners’ claims, such as the doctrines of abuse of right and the ius usus innocui — the right of using someone else’s property in a way that does not harm its owner; the applicability of those limits to copyright can be inferred from art. 40 of the Spanish Copyright Act, which enacts the “three step test”; the Supreme Court affirmed the court of appeals’ ruling, deeming the plaintiff’s claim an abuse of his right].

 

Supreme Court, Civil Chamber, alasbarricadas.com, 72/2011, February 10, 2011 (ES:TS:2011:559)

[defamation, liability, internet forum, hosting exemption]

[holding the owner of an internet forum liable for defamatory remarks posted by users against the Spanish pop singer Ramoncín; the court considered that the owner of the forum did not qualify for the hosting exemption because (a) the defamatory nature of the contents was self-evident and thus the defendant should be deemed aware of facts or circumstances indicating illegal activity, and (b) the website owner was negligent as it did not provide enough contact details to be notified about illegal content].

 

Supreme Court, Civil Chamber, quejasonline.com, 316/2010, May 18, 2010 (ES:TS:2010:2292)

[defamation, liability, internet forum, hosting exemption]

[holding the owner of an internet forum not liable for its users’ defamatory messages; the website owner complied with the hosting exemption’s requirements to be free from liability as it had no actual knowledge or awareness of facts or circumstances revealing the illegal nature of the offensive comment, and promptly removed it once notified about it].

 

Supreme Court, Civil Chamber, Asociación de Internautas v. SGAE, 773/2009, December 9, 2009 (ES:TS:2009:7684)

[defamation, liability, gripe site, actual knowledge, hosting exemption]

[holding the defendant liable for hosting a third party gripe site and awarding 36,000 Euros in damages to plaintiffs; the defendant could not benefit from the hosting exemption as it was deemed to know about the defamatory contents of the gripe site; the defendant argued that, according to the language of the hosting exemption as transposed into Spanish law (art. 16 LSSICE), actual knowledge only exists when there has been a prior decision declaring the illegal nature of the third party contents; the court held instead that Art. 16 LSSICE must be construed openly, as otherwise it would unreasonably limit the possibilities of obtaining actual knowledge of the illegal content hosted and thus would not be in accordance with the eCommerce Directive]. 

 

Appellate Courts

Audiencia Nacional, Administrative Chamber, Google Inc v Spanish Data Protection Authority, May 11, 2017 (ES:AN:2017:2433)

[right to be forgotten, search engines, data protection]

[The Spanish Data Protection Authority (AEDP) issued a decision ordering Google Inc to delist a search result pointing to negative comments about the professional conduct of a medical doctor; Google Inc appealed the decision to the Audiencia Nacional (AN); the AN found that the public interest should prevail so that potential patients of that doctor may know about the experiences and opinions of former patients; therefore, the AN reversed the AEDP decision]. [See more info, in Spanish, here].

 

 

Audiencia Provincial [Court of Appeals] of Castellón, Section 1, Criminal, Bajatetodo.com, 414/2014, November 12, 2014 (ES:APCS:2014:1098)

[copyright, criminal liability, linking, webmaster]

[(1) The Criminal Court of Appeal of Castellón upheld a previous decision charging the webmaster of the website Bajatetodo.com with a eighteen-month prison term under Article 270 of the Spanish Criminal Code. The website used to provide links to a miscellaneous array of infringing materials available online.

(2) The Court of Appeal applied the language of the new copyright reform (see above) by stressing that the webmaster went well beyond a mere passive neutral intermediary role by selecting, ordering and indexing the online resources to access the infringing materials. For this reason, the webmaster could not benefit of the linking safe harbour, specifically provided by the Spanish implementation of the eCommerce Directive.

(3) Additionally, the Court of Appeal of Castellón made specific reference to the Svensson case decided by the European Court of Justice. The Court rejected the earlier assumption by Spanish courts that operators of websites linking to infringing contents online cannot be held criminally liable because they do not engage in acts of communication to the public. According to Svensson, the Spanish Court argued, linking to infringing  contents constitutes unauthorized communication to the public, and therefore copyright infringment, which triggers the website operators' criminal liability.] [See also CIS blog]

 

Audiencia Provincial [Court of Appeals] of Madrid, Section 28 (specializing on IP), Civil, Telecinco v. YouTube, 11/2014, January 14, 2014 (ES:APM:2014:4)

[copyright, YouTube, hosting exemption

[holding YouTube not liable for copyright infringement; the plaintiff had not properly identified the allegedly infringing videos; YouTube met the conditions required by the hosting safe harbor and thus was exempted from liability; YouTube cannot be enjoined generally to prevent copyright infringing uploads]. [see also CIS blog

 

Audiencia Provincial [Court of Appeals] of Barcelona, Section 15 (specializing on IP), Civil, Promusicae v. R Cable y Telecomunicaciones Galicia, 470/2013, December 18, 2013 (ES:APB:2013:14227)

[copyright, disconnection, Internet access, filesharing]

[ordering an ISP to suspend, immediately and for good, the Internet connection of a user who engaged in copyright infringing file-sharing]. 

 

Audiencia Provincial [Court of Appeals] of Barcelona, Section 15 (specializing on IP), Civil, Indice-web.com, 301/11, July 7, 2011 (ES:APB:2011:4207)

[copyright, communication to the public, linking]

finding that a website offering links to copyright infringing content located somewhere else on the Internet does not satisfy either acts of reproduction or acts of communication to the public element]. 

 

Audiencia Provincial [Court of Appeals] of Badajoz, 3rd. Section, Civil, PSOE Mérida, 280/10, September 17, 2010 (ES:APBA:2010:871)

[defamation, liability, internet forum

[holding the owners of a website devoted to politics liable on account of some defamatory comments posted by users]. 

 

Audiencia Provincial [Court of Appeals] of Madrid, 21st Section, Civil, rankia.com, 181/10, April 13, 2010 (ES:APM:2010:5802)

[defamation, liability, hosting safe harbor]

[holding the owner of a website not liable for defamatory comments posted by one user; the defendant qualified for the hosting safe harbor and thus was exempted from liability]. 

 

Audiencia Provincial [Court of Appeals] of Barcelona, 19th Section, Civil, Yahoo!, 98/10, March 3, 2010 (ES:APB:2010:2964)

[defamation, liability, hosting safe harbor, chat room, Yahoo!

[holding Yahoo! not liable for comments posted on a chat room hosted by Yahoo!; the defendant qualified for the hosting safe harbor as it duly removed the contents once notified and thus was exempted from liability]. 

 

Audiencia Provincial [Court of Appeals] of Lugo, 1st Section, Civil, mindoniense.com, 538/09, July 9, 2009 (ES:APLU:2009:611)

[defamation, liability, internet forum, hosting safe harbor]

[holding the owner of an internet forum not liable for defamatory comments posted by users; the defendant was qualified for the hosting safe harbor and thus was exempted from liability]. 

 

Audiencia Provincial [Court of Appeals] of Madrid, Section N. 2, Criminal, sharemula.com, 582/08, September 11, 2008 (ES:APM:2008:11267A)

[criminal copyright infringement, communication to the public, P2P, linking exemption]

[dismissing a criminal claim against the owner of a website that provides links to copyright infringing content; the court held that linking to content hosted somewhere else does not amount to a communication to the public of the content linked to, which is one of the elements necessary for the crime; in any event the accused party would be protected from criminal liability by the linking safe harbor].

 

Audiencia Provincial [Court of Appeals] of Madrid, 10th Section, Civil, Veloxia Network, 511/08, July 16, 2008 (ES:APM:2008:12603)

[defamation, liability, internet forum, hosting safe harbor]

[holding the owner of an internet forum not liable for defamatory comments posted by users; the defendant qualified for the hosting safe harbor and thus was exempted from liability]. 

 

Audiencia Provincial [Court of Appeals] of Madrid, 12th Section, Civil, Relevance v. Derecho.com, 278/08, April 17, 2008 (ES:APM:2008:4869)

[defamation, liability, hosting safe harbor]

[holding the owner of an internet forum not liable for defamatory comments posted by users; however, the defendant was enjoined from publishing similar comments in the future]. 

 

Audiencia Provincial [Court of Appeals] of Madrid, 18th Section, Civil, SGAE v. Frikipedia, 516/07, October 8, 2007 (ES:APM:2007:13597)

[defamation, liability, hosting safe harbor]

[holding the owner of the satirical wiki, Frikipedia, liable for some defamatory remarks on the entry about SGAE; the court held the hosting safe harbor did not apply].

 

Audiencia Provincial [Court of Appeals] of Madrid, 3dr Section, Criminal, Mafius blog, 96/07, February 26, 2007 (ES:APM:2007:6793)

[defamation, criminal liability, hosting safe harbor]

[holding a blog owner guilty on account of defamatory comments sent by unidentified readers; the court of appeals held that the hosting safe harbor did not apply]. 

 

Audiencia Provincial [Court of Appeals] of the Balearic Islands, 3rd Section, Civil, Unió Mallorquina, 65/07, February 22, 2007 (ES:APIB:2007:200)

[defamation, liability, internet forum]

[holding the owner of an internet forum liable for defamatory comments posted by users].

 

Audiencia Provincial [Court of Appeals] of Madrid, 14th Section, Civil, iEspaña, 835/05, December 20, 2005 (ES:APM:2005:13727)

[defamation, liability, hosting safe harbor]

[holding a hosting provider not liable for hosting a website where some defamatory comments were posted; the defendant qualified for the hosting safe harbor and thus was exempted from liability].

 

Lower Courts

Juzgado Mercantil No 2 of La Coruña, Mediaproducción v Roja Directa, 247/2016, November 22, 2016 (ES:JMC:2016:4325)

[defamation, liability, hosting safe harbor]

[holding the owner of the website RojaDirecta liable of copyright infringement; the site would offer links to streams of sports events; the court found the site was engaging in an unauthorized communication to the public, taking into account the criteria set by the CJEU in Svensson and GS Media; exemptions from liability did not apply as the site was considered non neutral, and hence a publisher rather than a mere intermediary].

[More info, in Spanish, can be found here]

 

Juzgado de lo penal [criminal court] # 4 of Castellón, Criminal, bajatetodo.com, 513/13, October 30, 2013
[criminal copyright infringement, communication to the public, P2P, linking exemption
 
[finding a website operator guilty of a criminal copyright infringement; the court found that a website providing links to infringing content hosted in P2P networks engaged in a communication to the public of those contents; the court held that the activity was not sheltered by the linking safe harbor of the Spanish law; the website operator was sentenced to 18 months of prison (which most likely will not be effective, as is usual in sentences below 2 years); the decision also dealt with the civil liability arising from the crime and thus damages were awarded to the right owners who brought the action].
 
Juzgado de lo Mercantil [Commercial Court] #7 of Madrid, Civil, Telecinco v. YouTube, 289/2010, September 20, 2010 [English version]
[copyright, YouTube, hosting exemption]
 
[holding YouTube not liable for copyright infringement; the plaintiff had not properly identified the allegedly infringing videos; YouTube met the conditions required by the hosting safe harbor and thus was exempted from liability].
 

Administrative Decisions

Procedimiento Sancionador PS/00149/2016. Resolución R/02232/2016. September 14, 2016.

 

In this administrative proceeding within the Spanish DPA (AEPD - Agencia Española de Protección de Datos), Google was fined in 150,000 Euros for communicating webmasters about the delisting of content based on data protection requests (Right to be Forgotten requests, based on the European and Spanish rights to cancellation and opposition). Building upon the guidelines issued by the Article 29 Working Party, the agency decided that a search engine does not have the legal obligation to inform webmasters and that the communication could render the request to be delisted inefficient, by allowing, among other things, the publisher to change the URL delisted or to create lists of URLs subject to de-indexed. 

 

When considering that Google would only inform that a URL was delisted based on the European data protection legislation, that the results would only be affected in the European versions of Google, and that the delisting would only take place in relation to specific search queries, the agency still found that this type of communication would amount to the processing of personal data (no extraordinary efforts would be required to identify the person who requested the delisting). The agency considered that the publisher does not have a right to be indexed and, therefore, would not have a legitimate interest to defend based on the communication that some results have been delisted based on a European Data Protection claim. 

The decision also initiated further investigation on the procedures used by the search engine to communicate the delistings to the Lumen database and the practice of informing the general public (on the search results) that the results are not complete.

For more information, see Miquel Peguera's post (in Spanish) and David Erdos' post (in English)

 

 

OTHER RESOURCES

 

CONTRIBUTORS

Miquel Peguera

Associate Professor of Law, Universitat Oberta de Catalunya, Barcelona.

Affiliate Scholar, Center for Internet & Society, University of Stanford Law School.

Email: mpeguera at uoc.edu

[personal page]

 

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