Case Reports Round-up

October 20, 2014

Defamation and the E-commerce Directive

The Court of Justice has given its ruling in a case concerning the interplay between defamation law and the special status given to providers of information society services under the E-commerce Directive

In a preliminary ruling by the Court of Justice of the European Union (Seventh Chamber) on the interpretation of the E-commerce Directive, 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 ( and 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.

Government Database Records and Human Rights

The European Court of Human Rights has ruled that a French crime database system was in breach of the ECHR for storing information on individuals against whom proceedings have been dropped.

In a Chamber judgment of 18 September, Brunet v France (application no. 21010/10), the Court held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) following a complaint about Mr Brunet’s details being recorded in a crime database after the discontinuance of criminal proceedings against him.

Mr Brunet had a violent row with his partner, who filed a complaint with the public prosecutor of Evry. He was taken into police custody. He in turn filed a complaint against his partner for assault, but it was never followed up. He was released and summoned for criminal mediation. The proceedings were eventually discontinued but Mr Brunet was listed in the recorded crimes database (the ‘STIC’ system), which contains information from investigation reports based on files drawn up by officers of the police, gendarmerie and customs. When Mr Brunet asked the public prosecutor to delete his details from the database, arguing that their inclusion was unjustified because his partner had withdrawn her complaint, the public prosecutor rejected his request on the ground that the proceedings had been ‘discontinued on the basis of a cause other than: no offence … or insufficiently established offence …’. The applicant was informed that no appeal lay against that decision.

The Court observed that the inclusion in the STIC database of data concerning Mr Brunet had constituted an interference with his right to respect for his private life; an interference which was in accordance with the law and which pursued the legitimate aims of the prevention of disorder and crime and the protection of the rights and freedoms of others.

It then examined whether that interference met a ‘pressing social need’ and, in particular, whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic authorities to justify it appeared ‘relevant and sufficient’.

The Court noted that the information contained in the database was quite intrusive in nature. While it did not contain fingerprints or a DNA profile, it consisted of details on identity and personality, in a database that was supposed to be used for researching crimes. In addition, the retention time of the personal record, 20 years, was particularly lengthy in view of the fact that Mr Brunet had not been found guilty and the proceedings had been discontinued.

In considering whether such a retention time was proportionate, the Court noted that the law entitled the public prosecutor to order the deletion of a personal record only in a limited number of situations and, in the case of discontinuance, only if that decision had been justified by insufficient evidence. In rejecting Mr Brunet’s request, the public prosecutor of Evry had applied the law strictly. He did not have the power to verify the pertinence of maintaining the information in question in the STIC database in the light of its purpose, or having regard to factual and personality-related elements. Consequently, the Court took the view that the public prosecutor had no discretion to assess the appropriateness of retaining such data and thus his supervision could not be regarded as effective. The Court further noted that at the relevant time no appeal lay against the public prosecutor’s decision.

Therefore, even though the retention of the information in the STIC database was limited in time, Mr Brunet had not had any real opportunity of requesting the deletion of the data concerning him and, in a situation such as his, the envisaged duration of 20 years could in practice be assimilated, if not to indefinite retention, at least to a norm rather than to a maximum limit.

In conclusion, the Court took the view that the State had overstepped its margin of appreciation in such matters, and that the rules for the conservation of records in the STIC database, as applied to Mr Brunet, did not strike a fair balance between the competing public and private interests at stake. Accordingly, the impugned retention could be regarded as a disproportionate interference with Mr Brunet’s right to respect for his private life and was not necessary in a democratic society.

There had thus been a violation of Article 8 of the Convention.

The Court held that France was to pay the applicant 3,000 euros in respect of non-pecuniary damage. 

Copyright: Digitising of Books 

In Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, the CJEU ruled that a Member State may authorise libraries to digitise, without the consent of the rightholders, books they hold in their collection so as to make them available at electronic reading points. Subject to specified conditions, including the payment of fair compensation to rightholders, such an authorisation may permit users to print out on paper or store on a USB stick the books digitised by the library. 

The Copyright Directive permits Member States to provide for specific exceptions or limitations to the normal rights of copyright holders. One exception applies to public libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. In this case, the Bundesgerichtshof (Federal Court of Justice of Germany) asked the Court to clarify the scope of this exception.

The Bundesgerichtshof has to rule on a dispute between the Technical University of Darmstadt  and a German publishing house, Eugen Ulmer KG. The university library digitised a textbook by Winfried Schulze entitled Einführung in die neuere Geschichte (Introduction to Modern History), published by Eugen Ulmer, before making it available on its electronic reading posts. The university library refused the offer of the publishing house to purchase and use as electronic books (‘e-books’) the textbooks Eugen Ulmer publishes (the book in question among them). Eugen Ulmer wanted to prevent the university from digitising the book in question and users of the library from being able, via the electronic reading points, to print out the book or store it on a USB stick and/or take those reproductions out of the library.  

The CJEU held that, even if the copyright holder offers to a library the chance to conclude licensing agreements for the use of works on appropriate terms, the library may avail itself of the exception relating to dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.

The Court went on to find that the Directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question. The Court added that this ancillary right of digitisation does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder, given that the German legislation at issue in this case provides that the number of copies of each work available on dedicated terminals must not be greater than that which those libraries have acquired in analogue format.

However, the CJEU took the view that that right of communication cannot permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals because such acts are acts of reproduction and are not necessary for communicating the work to users by means of dedicated terminals. Nevertheless, the CJEU states that Member States may, within the limits and conditions set by the Directive, provide for an exception or limitation to the exclusive right of reproduction of rightholders and thus permit the users of a library to print the works out on paper or store them on a USB stick from dedicated terminals. For that, it is necessary in particular that fair compensation be paid to the rightholders.