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WILMAP: Czech Republic

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SUMMARY (provided by Martin Husovec): (1) Czech law has a only a little experience with application of the general tort law principles to on-line intermediaries. There is no special liability basis for intermediaries. Recently passed new civil law makes no changes in this respect. 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 full-fills 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 (§ 2914 Civil Code), (iii) wrongful omission (§§ 2900, 2901, 2910 Civil Code + absolute right at stake).  (4) Unlike in the criminal law, accessory liability is not well-developed in the Czech civil law. Even though new Czech Civil Code mentions this type of liability in § 2915, it does not define its preconditions. The Czech courts also seldom distinguish it from other basis of liability. The inspiration of the principles upon which it is based hence comes mainly from the criminal law (similarly as in Slovakia). 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 the case-law.  (5) Vicarious liability under § 2914 of the Civil Code can apply only to small number of cases. Under this provision the damage shall be considered caused by a legal entity or by an individual also if they were caused by auxiliaries in the course of their activity for the principal. Czech 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. As the Civil Code is very new, there is no case-law on this issue in the context of intermediaries, yet. The law, however, 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. Czech law distinguishes cases of negligent wrongful omissions from negligent actions. The former is triggered only in exceptional situations outlined by the law (dangerous activity, close relationship, etc.).  (7) It is worth mentioning that Czech safe harboring system unfortunately instead of the negative language of the Directive (“is not liable if ..”), uses a positive one (“is liable if ..”), which gives an impression that losing of safe harbors leads to establishment of the liability. First Czech decisions interpreting this provision (Prolux and share-rapid.cz) seems to be embracing this reading. Contrary to what was reported in the EU study, Czech law has no special rules on notice and take down procedure. Injunctions can be issued against intermediaries even if they are not infringing 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 Act on Enforcement of Industrial Property Rights and the Copyright Act. It is not yet clarified if the same is possible in the field of personality rights and unfair competition law.

LEGISLATIONLaw No. 89/2012, February 3, 2012, Civil Code [The Civil Code provides for 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.] Law No. 480/2004, July 29, 2004, on Some Services of the Information Society [The Act implements e-Commerce Directive into Czech law incorporating mere conduit (§ 3), caching (§ 4) and hosting safe harbors (§ 5), and prohibition of general monitoring obligation (§ 6). The implementation unfortunately instead of the negative language of the Directive (“is not liable if ..”), uses a positive one (“is liable if ..”), which gives an impression that losing of safe harbors leads to establishment of the liability.]

DECISIONS

Superior CourtsSupreme Court [Nejvyšší soud ČR], Civil, Liberec Pirate, 8 Tdo 137/2013, February 27, 2013[domain name authority, trade mark infringement, liability] [The Court upheld the criminal liability of an operator of video indexing site, which included number of copyright infringing embed links. The Court found that the defendant himself put the links on his website and hence directly infringed the copyright by communicating the works to the public.] [see also eisionline blog; Martin Husovec, Czech Supreme Court: Embedding is Communication to the Public, Kluwer Copyright Blog 2012]

Lower CourtsCity Court in Prague, First instance court, Civil, Share-rapid.cz, 31 C 72/2011-33, December 12, 2011[cyberlocker, copyright, communication to the public, hosting safe harbor] [The Court hold an operator of a cyberlocker liable for committing a copyright infringement. As the decision came in the form of the default judgment against the operator, the grounds for the decision were not given. The plaintiff, however, claimed direct copyright infringement, arguing that loosing of the hosting safe harbor leads to communication to the public. If the Court accepted this, or some other basis for liability, is not clear. The Court obliged the defendant to pay 536.000 Czech crowns (19.507 EUR) from the title of unjust enrichment by letting the users to download the work almost 14.000 times by its default judgment. The case was appealed, but was rejected on appeal on merely procedural grounds.] [see also eisionline blog; Martin Husovec, Case Note on the share-rapid.cz Case, 8 Revue pro právo a technologie (2013)] Higher Court in Prague, Court of Appeals, Civil, Prolux, 3 Cmo 197/2010-82, March 2, 2011[discussion forum provider, defamation, third party comments, hosting safe harbor, actual knowledge] [The Court accepted the liability of a discussion forum provider for user comments. Unknown users posted several libelous statements on the website. The discussion provider refused to take them down, arguing that it can not establish its illegal nature. The Court hold the provider liable for an injunction to remove some statements that it found libelous (“like swine”), but rejected to grant any non-material satisfaction in money against the provider. The Court did not question the inverted wording of the Czech hosting safe harbor and readily accepted liability after concluding that hosting safe harbor was lost due to the notice from the plaintiff.] [see also Martin Husovec, Brief Commentary on the Prolux Case, 3 Revue pro právo a technologie (2011)] City Court in Prague, First Instance Court, Civil, Kaufland.cz, 32 Cm 55/2005[domain name authority, trade marks, domain name disputes] [The Court in a regular domain name dispute enabled the domain name transfer against the domain name authority as a defendant arguing that the source of such an injunction is a tort law.]

CONTRIBUTORSMartin HusovecEmail: martin at husovec.eu[personal page]


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