Dutch ruling sends intermediary liability back to the 90s

Usenet servers and clients

A civil court in Amsterdam has delivered a throwback ruling that reverses a decade of legal practice in intermediary liability. The BREIN Foundation is an anti-piracy group in the Netherlands, and it sued News-Service.com Europe (NSE), one of the largest providers of Usenet services in Europe. BREIN brought the action in an attempt to obtain an injunction to get NSE to remove infringing material from Usenet servers. The court agreed and ordered NSE to comply with the order, or to face fines of €50,000 EUR per day (reports here and here, and Dutch ruling here).

NSE might appeal the sentence, and their CEO was very critical of the ruling:

“We are very disappointed with the Court’s verdict. It is technically as well as economically unfeasible to check the contents of the 15 to 20 million messages that are exchanged on a daily basis. Added to which, there is no automated way of checking whether Usenet messages contain copyrighted material or whether permission has been obtained for the distribution of such material,”

This is indeed a very puzzling and disappointing decision that in the humble opinion of this commentator completely contradicts law and practice in the last few years. Europe has had in place since the year 2000 a system of limitation of liability for intermediaries, which arises from the fact that removing infringing content would be practically impossible for any service provider with a large user base. Art. 12 of the Electronic Commerce Directive establishes the principle of “mere conduit” for intermediaries:

“1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.”

It seems clear that this provision covers services like Usenet and NSE, where the infringing material is uploaded and downloaded by its users. Let us hope that this ruling is simply an aberration, and that NSE appeals and manages to overturn the injunction.

Nevertheless, the real question has to be… is there anyone out there who still uses Usenet?

4 Comments

geeklawyer · October 10, 2011 at 9:37 pm

Usenet is still in active use by a minority: old skool types still use it for chat but there is, as you will recall from the Newzbin cases, a heavy use for file sharing because it is often faster than torrents but anonymous.

Andres · October 10, 2011 at 10:51 pm

Thanks GL. I sort of lost track of usenet, but I do remember that there was quite a lot of action in binaries. To me Usenet reminds me of long debates in talk.origins.

TJ · October 17, 2011 at 12:07 am

I'm not sure that Usenet servers are properly characterised as falling under the mere conduit immunity – within the E-Commerce Directive framework they are much more likely to be classified as hosts, particularly as the server operator can choose which newsgroups to carry. That's not to say that the result in this case is correct as a matter of principle – but I don't think the Directive is helpful to Usenet providers.