In March 2010, the Municipal Court in Prague controversially found the operator of finance website Mesec.cz liable for the content of a thread on its discussion forum. The court ordered the operator to take down the thread, which contained negative comments about a real estate agency.
The defendant operates a popular internet website mesec.cz that contains information about various finance-related topics and products (such as bank accounts, credit cards, loans, investments, insurance, mortgages, etc.). In 2006, Mesec.cz featured an article entitled "You want to sell a flat: Alone or with a real estate agent?" which contained a link to a user discussion forum. Participants in the discussion shared their experiences of using various real estate agencies and a number of negative comments were made about the plaintiff real estate agency and its activities. The agency was not named in the original article.
In 2009, the plaintiff requested that the defendant remove these comments from the discussion. The defendant did not consider that the comments were unlawful and so refused to comply with the plaintiff’s request. Subsequently, the plaintiff sued the defendant seeking the removal of the discussion thread from the website and the payment of CZK 50,000 (approx. EUR 2,000) as compensation for damage to its goodwill.
The Czech regulation of website providers' liability is based on the EU E-Commerce Directive which was implemented into Czech law by Act No. 480/2004 Coll., on certain information society services.
Under the Act, an information service provider is liable for the contents of the information stored at the request of a user only if:
- the provider could know, taking into account its scope of activity and the circumstances and nature of the case, that the content of the information or actions of the user are illegal or that the user's conduct is unlawful;
- the provider demonstrably obtained information about the unlawfulness of the stored information or user's conduct and failed to act so as to remove or disable access to such information; or
- the provider directly or indirectly exercises a decisive influence on the user's activity.
In the above-mentioned dispute, the discussion on the defendant's website contained expressions concerning the plaintiff such as "they lie like a swine" or "they are a fraudulent company which should be liquidated". The court concluded that these expressions are not immediately related to the plaintiff's business activities but they are rude and abusive enough to threaten the plaintiff's good reputation. The court referred to a clash of two fundamental rights: the right to the freedom of speech and the right to the protection of a good reputation.
The court argued that the defendant should be liable for the content of the discussion because its business activity and source of revenue was (among other things) to use the website to rank various companies on the market. Furthermore, by enabling discussions, the defendant makes its website more attractive to users and it should therefore be liable for maintaining the quality of those discussions.
The court concluded that, given the defendant's scope of business activities and the circumstances of the case, the defendant could have known that the expressions contained in the discussion were unlawful and that the defendant took no steps to remedy the situation. The court’s reasoning appears to relate to the period before the defendant received the complaint from the plaintiff, as well as after.
The court ordered the defendant to remove the particular discussion thread which damaged the plaintiff's goodwill. At the same time, the court seems to have questioned the extent of the plaintiff’s goodwill and rejected the plaintiff's request for compensation on the basis that removal of the discussion thread was sufficient, especially in light of the plaintiff's business practices which had been criticized in other media and which were clearly controversial. It therefore appears that the court may have undermined its own argument about unlawfulness of the discussion.
To the best of our knowledge, this could be the first high-profile case in the Czech Republic dealing with the liability of ISPs. Unfortunately, it seems that the decision introduces a very broad interpretation of the regulation of information society services – perhaps broader than intended by the E-Commerce Directive. While we generally agree that internet discussions should not include defamatory (or otherwise illegal) statements, today's internet society is more accepting of expressive and emotional language than was posted on Mesec.cz in this case. It does not seem justified to require website providers to monitor user discussion forums and remove every posted word or sentence which is negative and/or which potentially damages a third party’s goodwill.
The defendant is appealing the decision and it will be interesting to see whether the appeal court takes a different approach.