Judge stretches liability hosting provider!

Creating a website and putting it on the internet is a piece of cake. The content of a website is actually hardly ever monitored. There are many vague websites that (deliberately) spread incorrect information. Often innocent, but sometimes also with the intention of maximising loss of reputation by making serious unsubstantiated accusations. It is often impossible to retrieve the person responsible for such a website. How can you get such a site removed? Media law attorney Thomas van Vugt shines a light on the liability of hosting providers.

Liability of the hosting provider if aware of unlawful nature

Since a few years, the Dutch Civil Code (BW) sets out a separate regulation relating to the liability of hosting providers. The basic principle of Section 6:196c of the Dutch Civil Code is that a hosting provider is not liable for the content of websites that are connected to the internet via its server. However, the following applies:

1. The hosting provider does not know and should not know that the information is of an unlawful character.
2. As soon as the provider is aware of the unlawful nature, the provider must immediately remove the information or block access to the website.

Based on this legal provision, a hosting provider is not liable for information that it hosts at the request of a user, unless it is notified of the ‘unmistakably unlawful’ character of the information, and if it subsequently omits to act promptly to block access to such information.

Claim for removal of or blocking access to website in preliminary relief proceedings

In the well-known case of Lycos/Pessers, the Amsterdam Court of Appeal and the Supreme Court clarified that this requirement of unmistakable unlawfulness in the case of defamation and libel The publication of a defamatory statement which damages a person's reputation without acting out of defence.
» Meer over libel libel is a high threshold on the Internet. The internet intermediary on whose servers the information is stored does not usually have a good insight into such information and therefore does not easily have to assume that information has an unmistakably unlawful character. However, the Court has recently stretched the scope of Section 6:196c of the Dutch Civil Code a little.

Summon hosting provider

Your Hosting was the hosting provider of the website GABME.org. The small site (only 2 web pages) stated that GABME stands for Global Advisory Board Middle East. According to the website, GABME is active in counter intelligence, terrorism, cyber crime, money laundering and corruption. The only contact details on the site are an email address and the mention “London United Kingdom”.

Wrongful accusation in fake report

The plaintiffs import natural stone from Iran. Via the internet, a “report” was circulated accusing plaintiffs of fraud scams and money laundering. This report refers to the website GABME.org. The author of the report was ‘Susanwilliams work’. “Susan Williams” also appeared to be the domain holder of GABME.org.

Construction loss of reputation

There was clearly a construction to involve plaintiffs in a scandal, according to the lawyer. The report did not contain any sources other than a reference to GABME research. Nothing else can be found on the internet about the organisation GABME itself, and there is no evidence that GABME actually exists. Furthermore, there are no reports or investigations into irregularities on the part of plaintiffs.

Demand to block access to the website

As was to be expected, research into the person behind the report and the website (“Susan Williams”) yielded nothing. Plaintiffs therefore demanded Your Hosting to block access to the GABME.org website “in order to remove the hint of legitimacy from the report”. Your Hosting refused with reference to article 6:196c of the Dutch Civil Code: only websites with an unlawful character can be blocked. The content of GABME.org is not unlawful, Your Hosting believes.

Website part of unlawful construction of unsubstantiated accusations

The Court in preliminary relief proceedings deems this explanation of the attorney to be oversimplified. Even if there is nothing unlawful on a website, a claim for removal of or blocking access to that site may be successful if the website is part of a construction with an unlawful character. According to the court, that was the case here. All information is designed to issue statements with an unlawful character about plaintiffs, apparently for no other purpose, i.e. serious unsubstantiated accusations. This means that the entire website as such falls within the scope of Section 6:196c of the Dutch Civil Code.

The Court in preliminary relief proceedings ordered Your Hosting to block access to the website permanently within 5 working days after the ruling.