The Court of Justice of the European Union (the “CJEU”) has recently confirmed that online publishers of news can be liable for defamatory comments and illegal material published on their website, regardless of whether the content is free to access or paid for by users.
Referral to the CJEU
This decision of the CJEU in Papasavvas and Others (C-291/13) was the result of a referral from a court in Cyprus relating to a case taken by a Cypriot man, Sotiris Papasavvas against a Cypriot newspaper, O Fileleftheros. Mr Papasavvas sought an injunction for the removal of material published on the newspaper’s website on the basis that it was defamatory. The Cypriot Court asked the CJEU to confirm whether ‘information society services’ (“ISS”) as defined in the E-Commerce Directive 2001/31/EC include the provision of online information services for which the service provider is remunerated not by the recipient, but by income generated by advertisements posted on the website.
Application of the E-Commerce Directive
The CJEU considered the application of the E-Commerce Directive to the type of services at issue in this case and confirmed that it is not necessary for services to be paid for by the person for whom they are performed in order to constitute an ISS. The Court explained that while the definition of an ISS in the E-Commerce Directive states that the service is normally provided for remuneration, recital 18 of the Directive expressly states that a service will not fall outside the E-Commerce Directive solely on the basis that the payment for the services is indirect.
Application of the so-called ‘hosting defence’
The application of the E-Commerce Directive to the services at issue raised the possibility that the online newspaper might be able to rely on the so called ‘hosting defence’ which provides that an ‘intermediary service provider’, such as an internet service provider, which does not create or monitor information but merely acts as an intermediary, storing or passing material on to users, will not be liable for any illegality of such information where:
- it does not have actual knowledge that the information it is storing or hosting is illegal;
- it does not have knowledge of facts or circumstances which would suggest illegality; and
- it acts to remove the information promptly once it is notified of such facts or circumstances.
The CJEU went on to consider whether the defendant could benefit from the hosting defence under the E-Commerce Directive. The Court cited its previous decisions in Google France and Google and L’Óreal and Others and confirmed that relevant factors for consideration include assistance of clients in drafting commercial messages or optimising content.
Decision of the CJEU
Ultimately, the CJEU concluded that the hosting defence does not extend to websites publishing news online which are free to access as they cannot claim that they are merely intermediaries in respect of the content on their sites. The CJEU explained that a newspaper publishing company which posts an online version of its newspaper on its website, has in principle, knowledge and control over the information it posts, it cannot be an ‘intermediary service provider’ within the meaning of the E-Commerce Directive, regardless of whether access to the website is free (with revenues coming from advertising) or paid for by customers directly. This decision confirms that all online news publishers may be liable for unlawful material published on their websites and that the hosting defence will not generally be available to online newspapers which are free to access and instead funded by advertising.