A recent ruling of the Court of Appeal of Concepcion set a precedent regarding liability for the publication of unlawful and offensive material on the Internet. The case in question involved the publication of a classified advertisement on a web site, by an unknown person, offering sexual services to be performed by an innocent third party.
Acknowledging the absence of a specific law to regulate use of the Internet, the court applied the rules of the Constitution and those of civil and criminal liability.
The difficulty of judging this case lay in the complex nature of the Internet; liabilities involved in unlawful acts committed through it cannot easily be determined and enforced because, for example, it has no legal representation, it is universal and unrestrictedly accessible. The constitutional right to freedom of speech without censorship also needed to be considered by the court.
The court made a distinction between:
- the acccess provider who connects the user to the Internet. The access provider is responsible when it knows or could have known of the unlawful activity of users, and did not remove the unlawful content or prevent access to it;
- the hosting provider who allows the infringing web site to be stored on its server. The hosting provider is liable in the same situations as the access provider; and
- the content provider who includes the unlawful material on the web site. The content provider becomes liable (i) when failing to adopt measures to avoid harmful information from being published and (ii) when failing to make known the identification of users who publish the information.
The court rejected the injunction filed against the defendant (an internet service provider) as an access and hosting provider, because the unlawful content had already been removed from the web site by the date that the action was filed.
However, the court ordered that internet access, hosting and content providers should take all technical measures necessary to avoid the publication of unlawful material on the Internet and should eliminate all material contrary to law and the values that inspire it.
For further information on this topic please contact Guillermo Carey or Jorge Carey Carvallo at Carey y Cía by telephone (+56 2 365 7219) or by fax (+56 2 633 1980) or by e-mail ([email protected] or [email protected]).
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