The judgment under discussion issued by the Provincial Court of Toledo (First Division) dated June the 1st, 2012, is an appeal by the condemned as a result of slanderous allegations against a public official in an internet forum, and also submitted by the moderator of such forum who was also condemned by virtue of the same judgment.
Specifically, this judgment is specially interest because of the Court’s reasoning on the issue of the civil liability of website administrators. This article is intended to break down the reasoning of different recent case law on this issue.
In this case, the administrator and creator of the Forum was condemned in the Court of First Instance as being guilty of civil solidarity with the author of the libel, on the basis of Section 212 of the Criminal Code, which declares civil liability on the "director of the medium" who spread the slander or insult. On his part, the appellant argue that the imputation of such liability is contrary to several dispositions included in the Law of Information Society Services (hereinafter referred to as LSSI).
Despite Section 13 of the LSSI considers the civil, criminal and administrative liability of the service providers of an information society, the appellant alleges that Section 16 raises an exception to this responsibility as, according to his understanding, there is no liability for information stored when: a) the actor does not have actual knowledge that the activity or information stored is unlawful, or that the act injured the rights or property of a third party to a degree for which there are actual civil damages, or b) that if they do, that they may act with diligence to remove the data or make the access impossible.
We shall understand actual knowledge in those cases when a competent body has declared the data illegal, ordered for its withdrawal or impossible access, or when the existence of the injury has been declared and the service provider was aware of the respective Court decision.
However, the Court, in keeping with most recent case law (See, Judgment from the Spanish Supreme Court no. 72/2011 of February – Case SGAE v. “Alasbarricadas.org” – and Judgment from the Provincial Court of Madrid of 31 March 2011 – “merodeando.com” –), does not consider that these are the only means of actual knowledge but also when the service provider was aware of the illegality without having to wait for such a declaration from the Court. In this case the Moderator of the forum noted that the author of the libel had many problems with previous content published on the forum and had asked the author to modify his posts in different occasions. Therefore, there existed a duty upon the moderator to exercise vigilance in regards to this user, and to remove such content without need of a prior judicial ruling. The court went on to say that it would have been reasonable to prevent this user from having access to the forum. Therefore, the Court dismissed the appeal made by the Forum Administrator, as there was in place joint and several liability under Section 212 of the Criminal Code.
Therefore, consolidating this string of cases (contra previous case precedent of Provincial Court of Madrid in no. 181/2010 from 13 April 2010 – “Rankia” –, Spanish Supreme Court Civil Chamber no. 316/2010 from 18 May 2010 – “Roboskizo S.L.” – among others) after which it is understood that the moderator has actual knowledge when he/she is made aware of the wrong, by any means, and such wrong is obvious (not only when it is so declared by a competent authority).
Finally, and as a result of this recent case, it is appropriate/prudent to warn administrators of such forums about the importance of updating their respective contact information, including the “Whois” facts or web information provided to users, specifically those affected, who want to report abuses to the administrator yet do not succeed due to a passivity or negligence on the part of the administrator in keeping current his/her information—such missed communication, due to inaction on the part of the moderator, is not an adequate defence to the “actual knowledge” prerequisite (Judgment from the Spanish Supreme Court, no. 72/2011 from 10 February –SGAE v. “Alasbarricadas.org” –).
The remaining problems to be solved in these cases arises firstly when it is necessary to prove that a Forum Administrator was aware of illicit content (which shall be considered in those cases where there is no complaint by the affected party or judicial recognition test made) and; secondly, by identifying the role that judges are assigning to a Forum Administrator in being familiar with the limits of the right to freedom of expression (while still honouring it) and, if applicable, implementing the common sense when removing content, which sometimes may not coincide with the judge’s opinions. Additionally, it is also worthy to mention the high cost for complying with all these requirements for this kind of websites which have a high number of users and traffic.