If an administrator of an Internet forum monitors the posts and informs users in the terms & conditions about moderation of the forum including removal of unlawful posts, it should be aware that it may be liable for any offensive content published by users that it has not removed.
In 2004 a monthly magazine “Academic Forum” published a critical article on a lecturer from the University in Opole. The article was published in paper edition and on the magazine’s website. Offensive posts and comments were added to a forum open to the general public on the magazine’s website in 2006-7. The lecturer notified the magazine of the unlawful nature of these posts and the posts were removed, although it took two months to do so. In 2008 further offensive entries were posted on the magazine’s forum but this time they were removed on the same day.
In the terms & conditions available on the magazine’s forum the publisher and administrator of the forum informed users that the forum was moderated and unlawful entries would be removed.
The lecturer sued the chief editor and the publisher of the magazine who were responsible for both paper and electronic version of the magazine. The lecturer claimed that his moral rights were infringed by not erasing the false and defamatory comments from the forum promptly enough. The lecturer demanded publication of apologies on the magazine’s website and in the magazine’s paper edition. He also demanded compensation (to be paid to a social organisation).
The court of first instance rejected the lecturer’s arguments. The court based its assessment on Article 14 of the Act of 18 July 2002 on Providing Services by Electronic Means (PSEMA), which concerns exclusion of liability of host provides for the content hosted (an implementation of Article 14 of the Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 – the “E-commerce Directive”) and Article 15 of PSEMA, which provides that a service provider is not obliged to monitor or verify the hosted content.
According to the Court, the magazine’s actions could not be considered unlawful since Article 14 of PSEMA provides that: “The responsibility for the stored data shall not be borne by a person who while making resources of a teleinformatic system available for the purpose of the data storage by a service recipient is not aware of unlawful nature of the data stored or the activity related to them and in case of being informed or receiving a notification on unlawful nature of the data or the activity related to them, it immediately makes the access to the data impossible”. Therefore, to assign the liability to the forum two conditions must be met: (i) it must be aware of the unlawful nature of the contents of the forum entries and (ii) it must fail to remove such contents despite receiving justified notification of their unlawful nature.
As the harmful forum posts were deleted the first instance Court concluded that the defendants had exercised due care. Thus, there were no grounds to find them liable for the offensive content.
The lecturer appealed the decision of the first instance court. The Court of Appeal accepted the lecturer’s claims and rejected the judgment of the lower court.
The Court of Appeal ruled that the essence of the case lay in the fact that the magazine did not have any legal obligation to verify or monitor the content of the forum but nevertheless chose to do so.
The magazine hired an employee to be the moderator of the forum who was monitoring the forum posts and removing those which he considered to be offensive or in any other way unlawful. Moreover the defendants posted information in the terms & conditions of the forum that they were moderating the contents of the webpage. Therefore they should have been aware of the unlawful nature of the posts on the forum. Accordingly, the Court of Appeal held that the exclusion of liability for hosting could not be applicable. Consequently, the defendants were found liable for not deleting the offensive posts from the forum without delay.
This is an important judgment for all internet service providers in Poland. They will have to decide which model they want to adopt for their services – either a pure hosting model where they do not monitor or moderate the hosted content at all and remove unlawful posts only upon prior notification or a model whereby they actively monitor the posts on a regular basis and to inform the users about such moderation. In the second of these models they may bear risk of full liability for any unlawful content that will be published by users if they are not removed in due time.
It may no longer be possible to follow the model used by some ISPs to decide to state in the terms and conditions that liability was excluded whilst at the same time performing moderation of posts.