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LEGISLATION
Information Society Services Act, May 1, 2004 [The Information Society Services Act (ISSA), which is based on the EU e-Commerce Directive (Directive 2000/31/EC), lists three types on services the providers which are exempted from potential liability under certain conditions: (i) mere transmission and access to public data communications network providers (Section 8 ISSA); (ii) caching providers (Section 9 ISSA); and (iii) hosting providers (Section 10 ISSA). The Act also stipulates that the service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or search any illegal activity (Section 11 ISSA).] Copyright Act, December 12, 1992 [Section 817 of Copyright Act stipulates that in the case of the unlawful use of a work or an object of related rights, the author or holder of related rights may, among other, claim termination of the unlawful use of a work or an object of related rights and refrainment from further violation pursuant to Section 1055 of the Law of Obligations Act]. Law of Obligations Act, July 1, 2002 [The Law of Obligations Act (LOA) implements Article 8(3) of the Copyright Directive (Directive 2001/29/EC). If unlawful damage is caused by violation of copyright or related rights or violation of industrial property right, the person whose rights are violated may request that the violator and the person whose services a third party used for the purpose of violation of the right be refrained from further violation. (Section 1055(3) LOA)].
BILLS AND PENDING PROPOSALS
The draft Copyright Act, July 19, 2014 [The draft Copyright Act in its currently available version does not include a special provision referring to Section 1055 of Law of Obligations Act as stated above. The Law of Obligations Act will not, however, be amended in relevant respect. Therefore, in essence no changes are introduced. The estimated time of entry into force of the new Copyright Act is 1 January 2017].
DECISIONS
Superior Courts
Supreme Court, Civil, Case No. 3-2-1-43-09, Delfi case, June 10, 2009 [defamation, hosting provider, news portal, comment section, liability] [(1) The case arose when a popular news portal (Delfi) in Estonia published an article about the ferry connection with the islands in Estonia. The news portal enabled users to comment on news articles. Among the comments were 20 comments that according to the claimant, the majority shareholder of the ferry transport company concerned, infringed his personality rights. The claimant argued that the news portal is liable for the damage incurred. Although Delfi implemented pre-examination of comments (if comments included specific vulgar expressions, the comment was not published), this was seen as an ineffective measure. (2) The Supreme Court upheld previous judgments and reiterated that (i) Delfi is a provider of content services. As such, Delfi governs the content that is stored and should be distinguished from an information service provider, falling under the e-Commerce Directive's Article 14 and its Estonian national implementation (Section 10 of the ISSA), which has neither knowledge of nor control over information which is transmitted or stored. (ii) By integrating the comment environment into its news portal and inviting users to post comments, Delfi could decide which comments to publish or not. The fact that Delfi did not use this capability did not mean that it had no control over the publishing of comments. In the Supreme Court’s view, because Delfi had a legal obligation to avoid causing damage to other persons, Delfi should have prevented unlawful comments from being published. (iii) Additionally, Delfi acted out of economic considerations and as such, the ISP cannot be seen as acting neutrally. (iv) Finally, the Estonian Supreme Court noted that both Delfi and the authors of the comments could be considered publishers of the comments. Therefore, the defamed party was free to choose against whom to bring the lawsuit. (3) The case was appealed to the European Court of Human Rights (ECtHR) where the First Section of the ECtHR issued its judgment on 10 October 2013. The case was referred to the Grand Chamber on 17 February 2014 and the judgment of the Grand Chamber was issued on 16 June 2015. The Grand Chamber found that the judgement of the Supreme Court of Estonia finding that Delfi is liable for the offensive comments had been a justified and proportionate restriction on the portal’s freedom of expression and the steps taken by Delfi to remove offensive comments without delay after their publication had been insufficient.
Lower CourtsCircuit Court of Tallinn, Civil, Case No. 2-08-76058/74, February 21, 2012[defamation, hosting provider, news portal, comment section, liability] [(1) The court ruled that the news portal that enabled commenting news articles published at its websites did not act neutrally (the activities of the ISP were not merely technical, automatic and passive in nature) as required under Section 10 of the ISSA (Section 14 of the e-Commerce Directive) and therefore the news portal could not benefit from the exemption of liability. (2) The court found that the Supreme Court in the Delfi case had reached a similar conclusion than the European Court of Justice in the Google AdWords case (C-236/08 to C-238/08) meaning that if an enterprise is not providing a service that is of a mere technical, automatic and passive nature, the enterprise cannot be exempted from liability.] Harju County Court of Harju, Civil, Case No. 2-05-22224/34, November 30, 2007[defamation, hosting provider, news portal, exemption from liability] [The court found that news portals which enabled uncensored commenting at its website were not liable for the activities of the users of the news portal under Sections 10 and 11 of the ISSA. The court suggested the claimant filed a claim against the commentator which could be identified with the help of the ISP publishing the article.]
OTHER RESOURCES
[There are no other resources available at the moment.]
CONTRIBUTORSAve PiikEmail: ave.piik@cobalt.legal[personal page]
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