Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Digital content and IP issues
Are websites and any other digital content required to display certain legal notices or other information in your jurisdiction?
Yes, pursuant to Article 5 of the Luxembourg e-Commerce Act, as modified, the provider of the information society service must render easily, directly and permanently accessible to the recipient of the service and competent authorities, the following information:
- its name, geographic address and contact details, including its email address, which will allow it to be contacted rapidly and communicated with in a direct and effective manner;
- as the case may be, its Luxembourg trade register number, value-added tax number and the authorisation it holds for exercising its activities, as well as the particulars of the relevant authority having granted such authorisation; and
- as concerns regulated professions:
- any professional body or similar institution with which the service provider is registered;
- the professional title and the member state where it has been granted; and
- a reference to the applicable professional rules in the member state of establishment and the means to access them.
Where the concerned information society service(s) refer(s) to prices or terms of sale/service delivery, these are to be indicated clearly and unambiguously. Whether the prices are inclusive of any taxes and additional costs must be stated clearly.
Lastly, in a business-to-consumer context more information needs to be provided pursuant to the Luxembourg Consumer Code, as modified, and this both in general (Articles L. 111-1 and 112-1 to 8 of the Luxembourg Consumer Code) and in the event of an actual contract closure.
Liability for content
What rules govern liability for online or other digital content that is defamatory or infringes another party’s IP rights?
Such actions can be subject to both civil and criminal liability in accordance with the principles of general tort law set out in Article 1382 of the Luxembourg Civil Code, as modified, and/or the regulations of the concerned IP rights that are being infringed (respectively, Articles 443 to 452 of the Luxembourg Criminal Code, as modified, on defamation).
How can liability be excluded or limited?
Under Luxembourg law, limitation or exclusion of liability clauses are valid to the extent that they:
- do not erode the effects of the contract or do not tarnish one of its essential obligations (meaning that they do not deprive the contract of its essence);
- do not exclude an obligation of mandatory Luxembourg law (eg, the warranty of the seller for hidden defects); and
- do not exclude and/or limit liability for death or bodily harm or for wilful intent or personal fraud.
Which parties can be held liable for defamatory or infringing content? Can contingent liability be extended to internet service providers (ISPs)?
Pursuant to Article 21 of the Luxembourg Freedom of Expression in the Media Act, as modified, the criminal and civil responsibility for any fault committed via the media, such as defamatory or infringing content published online, lies in principle with the contributor, and in the event that such contributor is unknown, with the editor and, in the event that such editor is unknown, with the broadcaster. Such liability is however not absolute and both the Luxembourg Freedom of Expression in the Media Act, as modified, itself and Article 443 of the Luxembourg Criminal Code, as modified, foresee certain limitations.
The definition of ‘broadcaster’ contained in Article 3(2) of the Luxembourg Freedom of Expression in the Media Act, as modified, is very broad and includes any information society service providers, such as ISPs. Furthermore, the notion of ‘broadcaster’ specifically includes online intermediaries that perform "mere conduit", "caching" or "hosting" services in accordance with Articles 60 to 62 of the Luxembourg e-Commerce Act, as modified. Nevertheless, the latter online intermediaries cannot be held liable if the strict conditions mentioned in the law are met.
What rules and procedures govern content takedowns? Can ISPs remove defamatory or infringing content without permission?
Within the context of a criminal procedure, content takedowns may be requested and granted in accordance with Articles 75 and 76 of the Luxembourg Freedom of Expression in the Media Act, as modified. ISPs are nonetheless free to remove defamatory or infringing content without permission, provided that they safeguard freedom of expression too, in order to avoid any claims in response. Online intermediaries providing hosting services should act expeditiously to remove or disable access to the information in question in order to benefit from the exclusion of liability foreseen in Article 62 of the Luxembourg e-Commerce Act, as modified, upon obtaining actual knowledge or awareness of illegal activities.
What rules, restrictions and procedures govern the licensing of domain names?
The top domain name ‘.lu’ is managed by DNS Luxembourg, which accredits registrars from which a registration of a ‘.lu’ domain name can be obtained. More information can be found at https://www.dns.lu/en/.
Domain name registrations must respect the principles set out by the Internet Corporation for Assigned Names and Numbers (ICANN), meaning that, among other things, they should not be identical or confusingly similar to trademarks or service marks in which another person has rights.
How are domain name disputes resolved in your jurisdiction?
Domain name disputes are typically resolved via:
- the Uniform Domain Name Dispute Resolution Policy set up by ICANN, whereby the claimant must prove that:
- the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which it has rights;
- the respondent has no rights or legitimate interests in respect of the domain name that is the subject of the complaint; and
- the domain name was registered and is being used in bad faith; or
- ordinary court proceedings, meaning before a district court at first instance, where the following grounds are typically invoked:
- trademark infringement if the domain name is also a registered trademark;
- domain name grabbing constituting a fault pursuant to general tort law (Article 1382 of the Luxembourg Civil Code); or
- trade name protection and possibly copyright protection of the trade name.
For ‘.lu’ domain names, there is also an additional procedure that allows to freeze the transfer of ‘.lu’ domain names if a valid court action has been brought against the ‘.lu’ domain name holder.
What special measures and safeguards should rights holders consider in protecting their online/digital content?
Rights holders should ensure that:
- their rights are acknowledged, either by advertsing the intellectual property’s protected status of the content, or making sure that it is mentioned (eg, copyright symbol and explicit clause in the disclaimer). It may also be worthwhile making use of the i-depot procedure of the Benelux Office for Intellectual Property and logging relevant ideas, especially in relation to unregistered IP rights such as copyright, in order to be able to prove later on that they created, devised or designed it; and
- sufficient security measures are in place in connection with the website or online space in which the content is available.
Click here to view full article.