The Spanish Supreme Court has upheld the appeal filed by the owner of the domain name merodeando.com who was sentenced to pay the amount of 9000 Euros and to withdraw the posts made by the users regarding the SGAE (The Spanish Copyright Collecting Society), such as SGAE= THIEVES.
This issue started five years ago when the SGAE brought an action against the owner of the cited domain name since some comments posted at merodeando.com were considered to infringe the honour of the association.
At first and second instance the defendant was declared responsible since it was proved that he had created the web page, his intervention introducing the contents and the technical control over them. The owner alleged that he had simply enjoyed of his freedom of expression right whereas the comments posted in the blog were made by third parties lacking of any responsibility over them.
Now the Supreme Court has performed a double assessment in order to uphold the appeal filed by the owner of the web page:
- Responsibility of the Internet service providers: The Court has analyzed this responsibility according to articles 16 and 17 of the Law for the Information Society and Electronic Commerce Service according to which the Internet service providers are exempt from any responsibility regarding the stored information at the recipient’s request and regarding the information sent to the recipient of its services, always provided that they are not effectively aware of the activity or the information be illegal or be detrimental to third’s rights or, in case of being aware of it they have taken the necessary steps to proceed with the withdrawal of these data or to make impossible the access to them.
Consequently, the acquiescence is the clue to assess the responsibility of the web ‘s owner. In these circumstances the Supreme Court stated that the appellant was responsible for the contents of the other web pages where the SGAE was cited as a thieve and its commercial activity clearly explained, since the web owner provided the link and the way to access to these pages.
Therefore, the Court has declared that the web owner, even if been a simple Internet service provider and the comments posted by third parties, he is responsible because he has knowledge of the facts. Notwithstanding, the Court upheld the appeal considering that the freedom expression right should prevail over the SGAE’S infringed honor.
- Freedom of Expression and Information over the right to Honour: the freeedom of expression and information right should outweigh over the SGAE’s honor since the comments posted on the web site regarding the Copyright association have to be interpreted not isolated but in connection with other terms and expressions also existent in the web as “Why does the SGAE earn money?”
In addition to this, the Court has stated that the criticisms concerning the SGAE current practice were also discussed by the different media. Moreover, there are pending proceedings actions brought against the SGAE managers so the posted comments were not that distant from reality and the public opinion should be informed, reason why the freedom of expression right has to prevail.