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SUMMARY (provided by Damjan Bonač): (1) Intermediary liability of internet service providers is a relatively new issue in Slovenian case law and legal doctrine. Most cases refer to the infringements of personal rights through defamatory statements.

(2) In Slovenian law, the Electronic Commerce Market Act implements the safe harbor regime which was introduced by the eCommerce directive. However, there are no specific statutory provisions that are able to provide a special liability basis for intermediaries. Therefore, their liability must be determined according to general rules of tortious liability. Due to the fact that Slovenian law limits the establishment of liability for third parties to the existence of a specific relationship between that party and the primary infringer (e.g. parental liability or liability for employees) and that the establishment of strict liability must be explicitly provided by law, internet intermediaries will only be liable for their own conduct – action or omission (e.g. if they support or induce the infringement). Therefore culpability is a necessary prerequisite for the establishment of extra-contractual liability for online intermediaries. (3) However, according to case law (see cases VSM I Cp 11/2015,  VSL I Cp 252/2014 and VSL I Cp 3037/2011 below), it is likely that internet intermediaries will be liable if they cannot establish a valid safe harbor defense. In other words, if an online intermediary acquires knowledge of an illegal activity and does nothing to prevent it, it will automatically become liable as its inaction will be interpreted as a dereliction of a duty of care (either intentionally or negligently). In this respect, the safe harbor provisions, which were intended to protect against liability, may be interpreted by Slovenian courts to add grounds for its establishment. (4) Injunctions can be based on the Electronic Commerce Market Act as well as on some other statutes (e.g. article 134 of Code of Obligations for infringements of personal rights). In addition, according to case law, injunctions can also be based on a legal doctrine similar to the German principle of disturbance liability (Störerhaftung) (see case VSL I Cpg 862/2013 below).

LEGISLATIONElectronic Communications Act, December 20, 2012 [English Version] [Article 203 of the Electronic Communications Act (Zakon o elektronskih komunikacijah, hereinafter ZEKom-1) obliges internet network operators and internet access providers to refrain from any interference that would limit, retain or slow down internet traffic in order to retain net neutrality, unless the court issues an injunction.] Electronic Commerce Market Act, May 30, 2006 [The eCommerce directive was implemented into Slovenian law by the Electronic Commerce Market Act (Zakon o elektronskem poslovanju na trgu, hereinafter ZEPT). (1) The safe harbor regime (articles 12 to 15 of eCommerce directive) is transposed almost verbatim into the act , thus providing liability exemptions for mere conduit service providers (article 9), caching providers (article 10) and hosting providers (article 11).  (2) ZEPT also provides that service providers cannot be obliged to monitor information transmitted or stored by them or to search for circumstances indicating an illegal activity (article 8(3)). (3) The legal basis for injunctions is provided in article 9(3), 10(2), 11(2) and article 18 of ZEPT. It should be noted that the possibility to issue an injunction is explicitly limited to courts and cannot be administered by administrative bodies. (4) As in the eCommerce directive, the requirement that the service must be normally provided for remuneration in order to qualify as an information society service and thus benefit from the safe harbour regime is also present in ZEPT. Furthermore, this requirement is particularly emphasized in the article 1(2) which states that ZEPT refers to the information society services that are provided as commercial activities.] Code of Obligations, October 3, 2001 [English Version] [The Code of Obligations (Obligacijski zakonik, hereinafter OZ) provides basic tort principles upon which internet intermediaries may be held liable. (1) Article 131 thus stipulates that: “Any person that causes damage to another shall be obliged to reimburse it; unless it is proved that the damage was incurred without the culpability of the former”. Besides the possibility that internet intermediaries may be held liable as primary infringers, joint and several liability is imposed on all participants, instigators and those who assist the liable person in evading detection (article 186). Although culpability is necessary in order to find a person liable under this heading, negligence can also be sufficient when imposing liability on intermediaries. (2) In connection to infringements of personal rights, Article 134 OZ provides the legal basis for injunctions requiring the defendant to terminate and refrain from infringements.]

BILLS AND PENDING PROPOSALSDraft Law on Amending and Supplementing the Media Act, May 25, 2015 [(1) The Ministry of Culture released a new Draft Law on Amending and Supplementing the Media Act, which states that in order to regulate hate speech – especially on online media platforms – the "editor-in-chief" should be held liable for user-generated content (comments and other audiovisual material). Furthermore, the "editor-in-chief" must implement and publish rules for the selection and inclusion of comments. All comments that are not in line with such rules must be deleted in the shortest time possible. Failing to meet listed obligations constitutes a misdemeanor for which the "editor-in-chief" could be fined between 500 and 5000 euros. (2) The Information Commissioner has already expressed concerns regarding the purposed amendments by stating that such obligations could seriously impede constitutionally protected freedom of speech. The Commissioner has also emphasized that such responsibility leads to general monitoring obligation which is explicitly prohibited by Slovenian (Article 8 of ZEPT) and European law (Article 15 of eCommerce directive).]

DECISIONS

Superior Courts[There are no Supreme Court decisions to date.]

Lower CourtsHigher Court in Maribor, VSM sodba I Cp 11/2015, 2015[defamation, discussion forum provider, third party comments, hosting provider liability] [The Court upheld the decision of the court of first instance which imposed liability on the operator of a discussion forum for failing to remove defamatory statements, written by its users. The Court stated that the defendant was acting as a host provider under the meaning of article 11 of ZEPT (article 14 of eCommerce directive); therefore, he was obliged to immediately remove or disable access to the infringing statements, as soon as he was informed of their illegal nature. The court concluded that in failing to do so, the discussion forum operator was liable for the unlawful conduct of its users.] Higher Court in Ljubljana, VSL sodba in sklep I Cp 252/2014, 2014[defamation, personality rights, liability for damages, blog] [(1) The Court confirmed the decision of the court of first instance which held that a blogger (a well know musician) and the blog portal operator (which was acting as a host provider) were not liable for the defamatory statements which were infringing on the plaintiffs personal rights since the plaintiff itself contributed to the damage by introducing the disputed facts from his personal life to the public (injured party`s consent). (2) However, the court emphasized that hosting providers are obliged to expeditiously remove or block access to illegal information as soon as they are aware of its potentially unlawful nature and not only after they acquire knowledge of the illegality by injunction or judgement. The Court`s reasoning also suggests that defaulting the obligation to remove allegedly infringing content leads to the automatic establishment of joint and several liability with the primary infringer in case the disputed content is later determined to be illegal. In addition, the Court held that the assessment of the possibility for a blog portal operator to perform editorial control over the hosted content was irrelevant for the decision.] Higher Court in Ljubljana, VSL sklep I Cpg 862/2013, 2013[discussion forum provider, defamation, third party comments, hosting provider liability, injunction] [(1) The Court upheld an interim injunction issued against an hosting provider running a web forum where the primary defendant posted the statements tarnishing the reputation of a legal entity. (2) The court explicitly stated that liability is imposed not only on the immediate wrongdoer and any participants in the wrongdoing, but also on anyone who, in any way, knowingly and causally contributes to an infringement by another or creates a risk which could result in the breach of a protected legal right, provided that it is possible and reasonable for them to prevent the infringement. The Court held that the hosting provider should do everything that is technically possible to prevent infringement after being informed of the illegal content by the plaintiff.  (3) Since the Court also made a reference to a legal publication describing the German approach to hosting providers liability in the Alone in the Dark case (BGH I ZR 18/11) and the German doctrine of disturbance liability (Störerhaftung), it seems this German doctrine was also introduced in Slovenian jurisprudence. However, the Court did not explain what is actually meant by “technically possible and reasonable measures” as well as failed to provide any conditions that would define reasonable duties to review.] Higher Court in Ljubljana, VSL sodba I Cp 3037/2011, 2011[defamation, liability for damages, blog, hosting, injunction] [(1) The Court upheld a decision to impose joint and several liability on a blog portal operator, who was acting as a host provider, despite the fact that there was no editorial control over the blog posts and the identity of the primary defendant, a well known blogger, was well known. (2) The court held that hosting providers are not liable for the information they transmit or store on the request of their users if they are not aware of facts or circumstances from which the illegality is apparent or if they expeditiously remove or block access to such information once they are aware of their unlawful nature. If the provider does not act accordingly, they may be held liable for the information that they store on the request of their users. (3) The Court concluded that the provider lost his safe harbor privileges at the moment when the plaintiff informed him about the defamatory statements posted on the primary defendant’s blog. Since the Court did not provide any other legal basis for liability, it seems that losing the safe harbor defense lead to the establishment of liability.]

OTHER RESOURCESLaw Yearbook, http://www.ipp-pf.si/pravni-letopis-2010

CONTRIBUTORSDamjan BonačEmail: d.bonac at gmail.com

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