In a preliminary ruling by the Court of Justice of the European Union (Seventh Chamber), the interpretation of the E-commerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce), the Court was required to consider the definitions of ‘information society service’ and ‘service provider'” in the context of defamation proceedings.
In Case C?291/13, Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd, Takis Kounnafi and Giorgos Sertis, the court in Cyprus, the Eparkhiako Dikastirio Lefkosias, referred a number of questions for a preliminary ruling. Mr Papasavvas was seeking damages for harm caused to him by articles published in the daily national newspaper, O Fileleftheros, and on two web sites (http://www.philenews.com and http://www.phileftheros.com. He wanted the national court to grant an injunction to prohibit the publication of the contested articles.
The CJEU ruled:
1. Under Article 2(a) of Directive 2000/31 the concept of ‘information society services’ covers 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 a website.
2. The Directive does not prohibit Member States from allocating liability for defamation to providers of information society services.
3. Since a newspaper publishing company which posts an online version of a newspaper on its web site has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. It follows that the limitations of civil liability specified in Articles 12 to 14 do not apply to the case of a newspaper publishing company which operates a web site on which the online version of a newspaper is posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on that web site, since it has knowledge of the information posted and exercises control over that information, whether or not access to that web site is free of charge.
4. The limitations of civil liability specified in Articles 12 to 14 are capable of applying in the context of proceedings between individuals relating to civil liability for defamation.
5. Articles 12 to 14 do not allow information society service providers to oppose the bringing of legal proceedings for civil liability against them and, consequently, the adoption of a prohibitory injunction by a national court.
The questions referred by the Cypriot court were as follows:
‘(1) Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31 …?
(2) If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31 …, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?
(3) Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 … relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?
(4) Do the definitions of “information society service” and “service provider” in Article 2 of Directive 2000/31 … and Article 1(2) of Directive 98/34 … cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?
(5) Bearing in mind the definition of “information service provider”, laid down in Article 2 of Directive 2000/31/EC and Article 1(2) of Directive 98/34 … could the following, or any of them, be regarded as a “mere conduit” or “caching” or “hosting” for the purposes of Articles 12, 13 and 14 of Directive 2000/31:
(a) a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;
(b) an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper’s staff and/or freelance journalists;
(c) a website which provides (a) or (b) above for a subscription?’
The Court’s formal rulings on those referred questions were as follows:
1. Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers 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 a website.
2. In a case such as that at issue in the main proceedings, Directive 2000/31 does not preclude the application of rules of civil liability for defamation.
3. The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 do not apply to the case of a newspaper publishing company which operates a website on which the online version of a newspaper is posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on that website, since it has knowledge of the information posted and exercises control over that information, whether or not access to that website is free of charge.
4. The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 are capable of applying in the context of proceedings between individuals relating to civil liability for defamation, where the conditions referred to in those articles are satisfied.
5. Articles 12 to 14 of Directive 2000/31 do not allow information society service providers to oppose the bringing of legal proceedings for civil liability against them and, consequently, the adoption of a prohibitory injunction by a national court. The limitations of liability provided for in those articles may be invoked by the provider in accordance with the provisions of national law transposing them or, failing that, for the purpose of an interpretation of that law in conformity with the directive. By contrast, in a case such as that in the main proceedings, Directive 2000/31 cannot, in itself, create obligations on the part of individuals and therefore cannot be relied on against those individuals.
