Sunday 29 December 2013

Internet legal developments to look out for in 2014 (Updated)

[Updated with progress as at 20 December 2014 and further updated 7 October 2015]

And see: Cyberlaw Memes and Themes for 2014

2013 has been a busy year for cyberlaw. But what does 2014 hold? Here are some developments in the UK and EU pipeline.

1.  Defamation Act 2013. This legislation comes into force in a few days’ time, on Wednesday 1 January 2014.   

  • It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
  • As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation. 
  • The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.  
  • There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication. 
The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.

2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force by 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014. [The copyright exceptions were intended (per the Minister in the IP Bill 2nd Reading Debate) to be laid before Parliament in February 2014 for debate under affirmative resolution procedure. Draft regulations were in fact laid before Parliament and published, together with a response to the technical review, explanatory notes, guidance and other supporting documents, on 27 March 2014 with a view to coming into force on 1 June 2014. All except the parody and private copying exceptions did so. These two exceptions were deferred following questions from the Joint Committee on Statutory Instruments. The drafts were then reissued for debate in Parliament, passed and come into force on 1 October 2014. Following a challenge by judicial review the private copying exception regulation has since been quashed.] [The European Commission Consultation response date was extended until 5 March 2014 and is now closed. 11,117 submissions were received.]

3. Blocking ordersConstantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely. [The CJEU issued its judgment on 27 March 2014. Comments here.]

4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability. [Svensson judgment issued on 13 February 2014. Discussion here.]

5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement.  Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks. [Blomqvist judgment issued on 6 February 2014. Summary here. AG Opinion in Pez Hejduk issued on 11 September 2014 (not yet in English). CJEU judgment in Pez Hejduk issued on 22 January 2015. Opted for mere accessibility as the threshold for jurisdiction over online copyright infringement.]

6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights. [17 Feb 2014 ECHR Grand Chamber decides to refer Delfi case (i.e. hear an appeal). Hearing on 9 July according to AdVox. Papasavvas judgment issued 11 September 2014. No surprises. Confirms previous CJEU caselaw, including application of eDate/Martinez to defamation. No mention of Delfi.]

7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU. [CJEU judgment issued 5 June 2014. Browsing permission not required.]

8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights. [In the latter the ECtHR requested the UK Government to provide written observations on admissibility and merits by 2 May 2014. The complaint has been stayed pending the outcome of the IPT cases (hearings July 2014). The IPT found that the challenged activities (PRISM intelligence sharing and the hypothetical use of RIPA S.8(4) warrants for TEMPORA were,
 in the light of disclosures of practices and policies made by the government during the proceedings, 'in accordance with the law' going forwards. The position prior to the disclosures would require further consideration. In a further judgment the IPT found that PRISM intelligence receipt prior to the disclosures made in the proceedings contravened Articles 8 and 10 ECHR. In the meantime the CJEU on 8 April 2014 invalidated the Data Retention Directive. As a result the UK government substantially relegislated the Data Retention Regulations 2009 in the Data Retention and Regulatory Powers Act (DRIPA). On 8 December 2014 MPs David Davis and Tom Watson (represented by Liberty) were granted permission to proceed with a judicial review of S.1 DRIPA, with the Open Rights Group and Privacy International intervening. The High Court disapplied S.1 on 17 July 2015, suspended until 31 March 2016. My mindmap of the UK interception legal landscape as at 7 October 2015:]

9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then.  It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward. [Voluntary letters scheme 'Creative Content UK' announced 19 July 2014.]

See also: Cyberlaw Memes and Themes for 2014

Friday 29 November 2013

Everyman links to a copyright work

Everyman: I’m trying to understand copyright and linking. With three pending references to the CJEU (Svensson, C More Entertainment, BestWater) I guess we will get some clarity before too long?

Scholarly Lawyer: We’ll get decisions. Clarity would be a bonus.

E: Why is this an issue at all?  Doesn’t everyone link on the internet?

SL: Of course. Trillions of links cause no problem at all. But some copyright owners want the right to control who creates links, or at least public links, to their works.

E: Do they have any basis for that? 
SL: The main battle at the moment is around the copyright communication to the public right.  Some national courts have said that it covers some types of linking.

E: Even where the rightsholder has put the material on the internet itself?  We’re not just talking about linking to infringing copies?

SL: Communication to the public is a pretty blunt instrument. It just refers to communication to the public of ‘works’. 
E: Which could cover authorised as well as unauthorised copies?

SL: Exactly. If the right covers linking to infringing copies, on the face of it copyright owners end up with a right to control linking to material that they have put on the internet themselves.
E: Which would be absurd.

SL: Most people would think so.  Even the most devoted adherents of strong copyright tend to stop short of arguing that rightsowners should be able to control simple linking to their own material.  
E: So where do they draw the line?

SL: They tie themselves in knots trying to do it.  The reality is there is no obvious principled basis on which to distinguish legitimate from illegitimate linking within the communication to the public right – and probably no comprehensible one either.

E: But didn't Mr Justice Arnold recently distil 18 principles from the nine CJEU cases on communication to the public?

SL: Yes. A heavier burden than one sentence of any EU Directive should have to bear.
E: What about reference linking?  Isn’t that a good dividing line?
SL: No-one agrees on what reference linking is. All links have a reference function because they refer to resources on the internet.  But you are right: the International Literary and Artistic Association (ALAI) based their recent Report and Opinion on what they called reference linking.

E: How did they define it?

SL: They distinguished between a link direct to specific material protected by copyright, using its URL; and a link which “does not make a specific protected material available, but merely works as a reference to a source where it may be possible to access it and where access to the specific work itself or otherwise protected material is not achieved.”

E: A bit of a mouthful, but doesn’t that make some sense?

SL: Not really.  This is a link to the ALAI report – a PDF file. The ALAI’s position is that it needs their permission (assuming they are the copyright owner), because it is direct to specific copyright protected material using its URL. A link to a file, in other words.
E: OK then, this link is to the page containing the ALAI report. Aren’t they saying that that link shouldn’t need permission because it only refers to a source from which you can access the report?

SL:  If so, it doesn’t help. The page that you have just linked to is itself probably a copyright work. The link may be a reference link viz a viz the report, but it is a direct link to the webpage using its URL. The webpage is an HTML file.  So on the ALAI’s logic it must need the permission of the copyright owner of the web page. You still end up in the position that every link – even a link to a home page – needs permission, unless the target page is for some reason not protected by copyright.

E: Oh. What sort of other links are there?

SL: You name it.  Simple links, deep links, inline links, embedded links, framing links, aggregating links, links to infringing copies, links to downloads, links to streams.

E: But none of them involves the linking site in storing the copyright material?
SL: Correct, except where the linking code has captured a thumbnail of a target image or video. And in none of them is the linking site or link creator part of the transmission stream.  That always goes direct from the target site to the user.

E: Does that matter?

SL: The Copyright Directive talks about the right to authorise or prohibit communication to the public of the work “by wire or wireless means”. According to Recital (23) the right “should not cover any other acts”.
E: That’s why the UK copyright legislation says the communication must be "by electronic transmission"?

SL: Yes. So you would expect the right to apply to those who initiate or intervene in the actual transmission.  That’s been true of every CJEU case so far.  The furthest the CJEU has gone, in Airfield, is to include someone who provided the encryption key and decryption card that enabled a user to receive an encrypted broadcast. The CJEU said this was an intervention without which those subscribers would not be able to enjoy the works broadcast.
E: Seems a long way from linking.  Surely people can access a work on the internet whether or not someone has linked to it?

SL: If it is publicly available, yes. The European Copyright Society Opinion on Svensson leads with the transmission point.  They say “Hyperlinks are not communications because establishing a hyperlink does not amount to ‘transmission’ of a work, and such transmission is a pre-requisite for ‘communication’.”  

E: But many national courts have held that linking can be a communication to the public.  If intervention in transmission is required, how can they have done that?

SL: By taking a very broad view of intervention.  The courts have tended to consider intervention in the availability of the work generally, without really focusing on whether there was intervention in the transmission.
E: Does any of this really matter? Isn’t linking so widespread that we all have implied permission to do it?

SL: Not if there are express licence terms on the target website.  And probably not if the link is to an infringing file.  In any case implied licence doesn’t address some pretty fundamental objections to requiring permission. Is a Twitter user really supposed to access the target site and check whether there are express licence terms, and if not consider whether there might be an implied licence, before tweeting (or retweeting) a link to an item on it? And how can the tweeter tell if the siteowner is entitled to give permission? In Svensson the link was to articles licensed by a newspaper, but which the plaintiff journalists said the newspaper didn’t have their authority to license.
E: I feel a chilling effect coming on.

SL: You’d be right.
E: Didn’t Tim Berners-Lee say that a right not to be referred to pulls the rug from under free speech?

SL: Yes. And SABAM v Scarlet demonstrates that the days when copyright could sit in its own little bubble, finely dissecting the wording of copyright treaties without regard to the human rights framework around it, are long gone at least in Europe.

E: If there are international treaties, don’t we have to abide by them?
SL: Certainly, but copyright instruments are not the only international treaties to which we adhere. The European Convention on Human Rights is also an international treaty. A copyright treaty has to be interpreted in a way that is compatible with and takes into account international treaty obligations in respect of fundamental human rights.

E: Aren’t some types of linking still potentially damaging to copyright owners?

SL: Perhaps, but the communication to the public right is far too blunt an instrument to catch culpable behaviour while leaving the rest alone.  If you want to catch culpable behaviour, there are better tools such as accessory liability for someone else’s infringement.  However that is outside the CJEU’s remit as it is not harmonised across the EU.
E: Roll on Svensson.

Tuesday 26 November 2013

Advocate General's Site Blocking Opinion in 15 tweets

[Update: the Court issued its judgment on 27 March 2014.  My assessment here.]

Today the CJEU issued the Advocate General's Opinion in the UPC Telekabel copyright site blocking case.  The Court's official press release is here (PDF).

And here is my attempt to summarise the Opinion (doing the best I can courtesy of Google Translate, since there is no English version) in 15 tweets:

  As a reminder, these were the questions posed by the Austrian court:

1. Is Article 8(3) of Directive 2001/29/EC (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder's consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? [AG's suggested answer: Yes.]

2. If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? [AG's suggested answer: N/A.]

3. If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Information Directive:

Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder's consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? [AG's suggested answer: No.]

4. If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? [AG's suggested answer: It can be. The national court must balance the various competing fundamental rights.]

Hat tip to Thijs van den Heuvel (@TMVDH) for Storifying my tweets.

Saturday 2 November 2013

Everyman meets a copyright radical

(In the interests of balance: Everyman learns respect for copyright)

Everyman: Nice set of stickers you have there.
Copyright Radical: Glad you like them. Down with the Copyright Fascists!
E: Excuse me?
RadiC: Just practising. Day of Action tomorrow.
E: About copyright?
RadiC: Knowledge is a common resource. Defend the public domain. Preserve the commons.  Freedom is sharing.  Copyright enslaves us.
E: Seemed like a voluntary exchange when I paid for my books.
RadiC:  Information wants to be free.  Copyright bars the way. 
E: Information isn’t free. Movies don’t get made for nothing. 
RadiC: Free as in speech, not free as in beer. 
E: Doesn’t change anything.  Who will make movies if anyone can copy the product?
RadiC: Paintings came before copyright.
E: When mass copying was impossible.
RadiC: So when copying was expensive, the investment to do it had to be protected.  Now it costs nothing, copying has to be stopped?
E: Aren’t you ignoring public goods? 
RadiC On the contrary. Knowledge is a public good.
E: That sounds bad.
RadiC:  How so?
E: This economics textbook says that consumption of a public good is non-rivalrous and non-excludable.  So an unlimited number of people can take a free ride on the author’s creative investment.  That leads to underproduction of creative works.
RadiC: You can prove anything with economics.
E: The book says that copyright addresses the free rider problem by introducing excludability. It creates the possibility of a functioning market.
RadiC: So we end up with big business controlling knowledge. 
E: Not a dynamic marketplace of ideas?
RadiC: Don’t be ridiculous.
E: Isn’t the alternative worse?
RadiC: Knowledge as the commons. Sounds fine to me.
E: If public goods are underproduced, next thing you have the State stepping in to correct market failure.
RadiC: Collective democratic action.
E: A State-sponsored representative elite controlling the creative commons in the interest of the voter coalitions whose interests it serves.  What’s free - as in speech - about that?
RadiC: You’d rather have unaccountable monopoly US corporations?
E: What the State controls the State rations, including knowledge.  Especially knowledge.
RadiC: This is about copyright, not the State controlling speech.
E: Shouldn’t we just try to have the right amount of copyright? Not too little, not too much.
RadiC: ‘Goldilocks Copyright Now!’ Remind me to make a sticker.  

Everyman learns respect for copyright

(In the interests of balance: Everyman meets a copyright radical)

Maximus Copyright: Hey, you!
Everyman: Me?
MaxC: What do you think you’re doing?
E:  I’m reading this interesting little blog about IT and internet law.
MaxC: You got permission to do that?
E: Who from?
MaxC: Me.  Or the Family.
E: They are?
MaxC: Relations and neighbours.
E: Nice to meet you all.
The Family: Thief! Thief! Thief!
E: What’s this about?
MaxC: This is my patch.  You’re on it.  Pay or get off.
E: I’m only looking.
MaxC: That’s using. Needs permission. Or should do1.
E: But there are paths.  They say Public Right of Way.
MaxC: You see the TPMs?
E: I'm guessing that's the barbed wire.
MaxC: Right. Illegal to cut it.
E: Is there anything I can do around here that isn't illegal?
MaxC: You've got to learn respect. People these days don't show the respect due to the Family. How did you find this place, anyway?
E: That link. It’s marked.
MaxC: This is serious.  An unlicensed link2. Take it down, boys.
The Family: Thief! Thief! Thief!
E: Who’s that over there? You haven’t introduced her.
MaxC: Minima.  She’s the other branch of the family.  We don’t speak.
E: No?
MaxC: They have crazy ideas. Balance, proportionality, reasonable expectations of users.  "The Family will get respect if it gives up some land".  Morons.  I tell you how we get respect, by strong enforcement.
E: Not by education, then?
MaxC: Education of course.  But it has to be the right sort of education.
E: The right sort?
MaxC: The sort that fosters respect. We like to keep it simple. ‘Don’t steal, don’t copy’.  That sort of thing.  If you don’t get the message, something more graduated.  If you still don’t get it, we chop your internet off.
E: Mine?
MaxC: You just keep your nose clean and there won’t be any trouble.
E: I had my nose in this blog until you showed up.
MaxC: Don’t get clever.
E: There’s something I don’t understand about all this.
MaxC: What?
E: If everything needs permission, won't everyone end up breaking the law? How does that foster respect for copyright?
MaxC: You’re starting to sound like cousin Mini and that Hargreaves character she hangs around with.  You need to be educated.
E: How, without any internet access?
MaxC: That's enough. Re-education camp for you.
E: Huh?
MaxC: You'll love it.  The tutors all love copyright. The guards all love copyright. It will be a better world when we all love copyright.
The Family: Take him away! 


1.The question of whether merely browsing a copyright work online requires the permission of the copyright owner is currently the subject of a reference to the EU Court of Justice in Newspaper Licensing Agency v PRCA.  The view of the UK Supreme Court was that it should not require permission, in the same way that reading a physical book does not – even if the book is an infringing copy. However the browsing point was of sufficient importance that it should be considered by the CJEU.
2.  The question whether a web link to a copyright work on the internet requires the permission of the copyright owner is currently the subject of references to the EU Court of Justice in Svensson, CMore and Bestwater.

Tuesday 22 October 2013

Pinckney – the CJEU wields a broad brush

The CJEU’s decision in Pinckney does not improve with closer acquaintance.  Any judgment that sets up the accessibility of a website as a basis on which to assume jurisdiction will ring alarm bells among internet actors, the more so when the defendant did not itself operate the website in question.  Pinckney is also questionable from a more traditional intellectual property and jurisdiction perspective.

The facts of Pinckney assumed by the CJEU were that the Austrian defendant Mediatech pressed a batch of CDs at its plant in Austria. Mediatech did this at the request of a United Kingdom company which marketed them through an internet site. There was no suggestion that Mediatech organised the distribution of the CDs by the UK companies who sold them on their websites or that it had any connection with them whatsoever.  To adopt a publishing analogy, Mediatech were the printer but not the publisher.
Peter Pinckney, the plaintiff, claimed that the CDs were unauthorised and infringed his copyright.  He was able to purchase the CDs at his residence in France from the UK internet sites, which were accessible to the French public.  He commenced proceedings against Mediatech in his local French court. 
Mediatech challenged jurisdiction.  Under Article 5(3) of the Brussels Regulation the French court has jurisdiction if it is a court of the place where the harmful event occurred.  EU caselaw has established that that includes both the place where the damage occurred and the place of the event giving rise to it. 
The CJEU allowed the French court to take jurisdiction on the basis that the harm in France was the availability in France of the UK websites from which the CDs could be purchased.  Its jurisdiction was limited to determining the damage caused in France.  
This result is open to the objection that the claim was against Mediatech, not the UK websites, and that by reproducing CDs in Austria Mediatech had caused no damage in France. Alternatively even if Mediatech's acts of reproduction in Austria could be regarded as indirectly causing damage in France, that should not be sufficient.  Long established EU jurisprudence (Dumez, Marinari) holds that a court taking jurisdiction on the basis of the place of the damage caused by the alleged wrong can do so only on the basis of direct, not indirect, damage. Only if the damage in France could be regarded as directly caused by Mediatech's reproduction of the CDs in in Austria should jurisdiction over Mediatech be available to the French court under Article 5(3).
The CJEU achieved its result in Pinckney by:
(1)   treating the various distinct ways of infringing copyright as if they were a single universal wrong;
(2) glossing over the implications of copyright territoriality;
(3) separating abstract damage from infringement;
(4) thus rendering itself incapable of considering:
(a) whether the damage relied upon was caused by the specific infringement alleged against the defendant and, if so
(b) whether the damage was direct or indirect in relation to the acts of the defendant.
A single universal wrong
Advocate General Raaskinen, whose Opinion the Court did not follow, focused on the fact that it was not clear from the French Cour de Cassation’s reference what substantive infringement claim Pinckney was making in the French courts against Mediatech, and thus what relevance the questions asked of the CJEU might have to the Cour de Cassation’s decision.
The AG’s perplexity is understandable.  By international treaty if copyright exists in one country then corresponding copyrights automatically come into existence in almost all other countries.  However each is still a separate territorial right.  National copyrights may differ in scope from one country to another, even within the EU where copyright has to an extent been harmonised.  
Each national copyright is also itself a bundle of separate rights, governing different activities such as copying, distribution and communication to the public.  In a cross border setting it is therefore dangerous to speak of ‘infringement of copyright’ in a universal sense.  It is more accurate to speak of infringement of the UK distribution right, the French reproduction right and so on.
According to the CJEU, however, no enquiry into the nature of the infringement is necessary once the condition is satisfied that the Member State in which the court is situated protects the copyrights relied on by the plaintiff.  (The Court assumed that that would automatically be the case). The enquiry then moves to the existence of damage within the jurisdiction of the court seised.
Glossing over territoriality
On the facts assumed by the CJEU, Mediatech's allegedly wrongful act was unauthorised reproduction in Austria.  Therefore if Mediatech infringed by copying it can only have infringed the Austrian reproduction right, not the French reproduction right.  While the French distribution right may have been infringed by the sale of CDs into France, that was from UK websites with whom, the CJEU stated, there was no evidence that Mediatech had any connection.
The Advocate General wanted, if the reference was declared admissible, to align the place of the damage more closely with the territoriality of the substantive right.  So the damage for infringement of the reproduction right would occur at the place of reproduction; the damage caused by infringement of the making available right would depend on targeting (as does infringement of the right itself), and so on.
The Court, however, rejected such niceties.  It was sufficient, in order to found the French court’s jurisdiction over a copyright claim against Mediatech, that CDs pressed by Mediatech in Austria were available in France from UK websites.  That constituted the necessary damage in France.  There was no need to consider the nature of the copyright claim against Mediatech.  Indeed it positively should not be considered.
Separating damage from infringement
There is a view that for intellectual property rights there is no distinction under Article 5(3) between the act of infringement and the damage caused by the infringement.  According to that view it would follow that, given the territorial nature of copyright, the only damage caused by an unauthorised act of reproduction in Austria could be in Austria. 
The Court's approach implicitly rejected this view.  The Court appears to have held not only that damage can in some unspecified way be regarded as separate from the infringement, but that damage resulting from a subsequent act of distribution by a UK third party from a UK website into France is sufficient to found jurisdiction in France against the Austrian copier.
The Court said:
“39 ... it is true that copyright … is subject to the principle of territoriality. However, copyrights must be automatically protected… in all Member States, so that they may be infringed in each one in accordance with the applicable substantive law.
40 … the issue as to whether the conditions under which a right protected in the Member State in which the court seised is situated may be regarded as having been infringed and whether that infringement may be attributed to the defendant falls within the scope of the examination of the substance of the action by the court having jurisdiction (see, to that effect, Wintersteiger, paragraph 26).
41      At the stage of examining the jurisdiction of a court to adjudicate on damage caused, the identification of the place where the harmful event giving rise to that damage occurred for the purposes of Article 5(3) of the Regulation cannot depend on criteria which are specific to the examination of the substance and which do not appear in that provision. Article 5(3) lays down, as the sole condition, that a harmful event has occurred or may occur. …”
43      It follows that, as regards the alleged infringement of a copyright, jurisdiction to hear an action in tort, delict or quasi-delict is already established in favour of the court seised if the Member State in which that court is situated protects the copyrights relied on by the plaintiff and that the harmful event alleged may occur within the jurisdiction of the court seised.
44      In circumstances such as those at issue in the main proceedings that likelihood arises, in particular, from the possibility of obtaining a reproduction of the work to which the rights relied on by the defendant pertain from an internet site accessible within the jurisdiction of the court seised.”
  And in the operative part the Court held that:
“Article 5(3) … must be interpreted as meaning that, in the event of alleged infringement of copyrights protected by the Member State of the court seised, the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State and which has, in the latter State, reproduced that work on a material support which is subsequently sold by companies established in a third Member State through an internet site also accessible with the jurisdiction of the court seised. That court has jurisdiction only to determine the damage caused in the Member State within which it is situated.”
So although the operative part of the judgment referred to the specific case of reproduction in the defendant’s own Member State, the supporting reasoning was that the nature of the alleged copyright infringement was irrelevant for Article 5(3) purposes. 
Causation and directness of damage
In Dumez and Marinari the CJEU established that only direct, not indirect, damage can be relied upon as the basis for jurisdiction under Article 5(3).  It is difficult to see how the directness or indirectness of the damage relied upon can be assessed unless the wrong alleged against the defendant is properly identified.  Only then can the degree of connection of the damage with the wrong be evaluated. 
While there may be merit in treating Article 5(3) as a uniform self-standing rule, that should not mean treating damage as an entirely abstract concept, unrelated to the nature of the wrongful act of the defendant that allegedly gives rise to it. 
The operative part of Pinckney mentions 'the damage caused'. But it does not in terms state which wrongful act is said to have caused the jurisdictionally relevant damage.  It was apparently sufficient for causation and directness of damage that Mediatech had reproduced CDs in Austria and that some of those CDs had turned up on a UK website accessible in France.
Similarly the excerpts from the reasoning quoted above make no mention of any need for a direct causal link between the wrongful act by the defendant (not someone else’s wrongful act) and the damage relied upon. 
Elsewhere in the judgment the Court mentioned, but did not discuss: “the damage resulting from an alleged copyright infringement” (para 30, emphasis added). 
Nowhere did the Court address the Dumez and Marinari requirement for damage under Article 5(3) to be direct. 
These omissions are perhaps inevitable, given the Court's refusal in its reasoning to focus on the nature of the substantive infringement alleged against the defendant.
On the facts of Pinckney, it appears strongly arguable that the damage alleged in France was at best indirect as against an Austrian defendant who pressed CDs in Austria, who thereby infringed (if anything) Austrian copyright, and against whom according to the CJEU there was no evidence of connection with the UK distributing websites. 
It might be said against this that in Shevill, a defamation case brought against a newspaper publisher, the damage was held to occur in any country in which the publication was distributed and where the plaintiff had a reputation.  The ECJ was not concerned to enquire as to the length of the distribution chain that led to copies circulating in the UK through independent distributors. 
However Shevill illustrates the difficulty.  Pinckney is as if Ms Shevill had sued not the publisher of the newspaper, Presse Alliance, but instead the printer.  While it may be reasonable to regard the publisher as causing direct damage in countries in which circulation occurs, can the same be said of the printer?  The approach of the CJEU in Pinckney, taking a generic approach to copyright infringement, precludes any such enquiry.
Court best able to determine the issues
The CJEU in Pinckney emphasised that the object of identifying the place of damage is to lead to the court best able to determine the issues (for instance on grounds of proximity and ease of taking evidence).  This holds true only if the alleged wrong is properly identified. The more remote the damage from the wrong, the less likely it is to be the case.  
Relevance of internet jurisdiction caselaw
The CJEU cited recent CJEU caselaw concerning the place of the harmful event where the allegations were of infringements committed via the internet and which might, as a result, produce their effects in numerous places (Wintersteiger, eDate/Martinez) (Pinckney, para 31). 
However the relevance of these cases is unclear.  In Pinckney, while the distribution of the CDs by third parties occurred online, the allegation against Mediatech was of reproduction at its pressing plant in Austria – an alleged infringement committed neither online nor in the country of the court asked to assume jurisdiction.
The CJEU’s refusal to regard as relevant to jurisdiction the exact nature of the infringement alleged against Mediatech appears to have led it to equate the effects of infringing online with those of physical reproduction, while avoiding any substantive comparison between the two.
This refusal is puzzling when, at the level of the nature of protection, the CJEU is content to adopt different meanings of Article 5(3) for, for instance, personality rights and trade marks (Wintersteiger, eDate/Martinez).
Effect on other decisions
Pinckney does not change previous decisions about the targeting condition for trade mark infringement (L'Oreal v eBay) or for making available to the public for copyright or database right (Sportradar).  Pinckney concerns jurisdiction criteria, whereas those decisions concerned the territorial scope of substantive rights. 
A historical footnote
The CJEU’s treatment of copyright infringement as a universal wrong rather than a bundle of discrete rights brings to mind the famously outspoken English 19th century barrister William Danckwerts KC, no respecter of judges, who sitting at the back of court one day heard Lord Alverstone say of the three prerogative writs that they were all “much the same thing”. 
Danckwerts could then be heard intoning:
Mandamus, a writ in the King’s name commanding a specified act to be done.  Quo warranto, a writ against a person or corporation that usurps a franchise.  Prohibition, a writ to forbid any court to proceed.  And the Lord Chief Justice of England thinks that all these remedies are much the same thing.  Oh Lord!”*
Oh Lord! indeed.  Even a broad brush should be wielded with precision. 

*This story is recounted in ‘The Oxford Book of Legal Anecdotes’ by Michael Gilbert, at p. 90.

Wednesday 16 October 2013

Who will sort out the Delfi mess?

[Updated 18 June 2014.  Decision is now under appeal to the Grand Chamber. Intervention submissions will be referenced here as and when known:

1.  Media Legal Defence Initiative - submission (PDF).
2. European Information Society Institute - submission (PDF)
3. ARTICLE 19 - Submission (PDF)]

The European Court of Human Rights (First Section) has found that there was no violation of Article 10 ECHR (freedom of expression) when the Estonian courts held a news website, Delfi AS, liable for defamatory statements by readers using the site’s article comments facility.

The Court’s approach to the responsibilities of internet publishers appears to challenge the principles underpinning the intermediary liability provisions of the EU ECommerce Directive.  The Court declined to question the Estonian courts’ narrow interpretation of the ECommerce Directive, even though it was in almost all respects at odds with subsequent EU Court of Justice decisions cited to the Court. 
The result is a mess of epic proportions, which it is to be hoped the Grand Chamber will have the opportunity to sort out if an appeal reference is made. [Yes. A reference was made and accepted.]  Failing that a pending reference to the CJEU in a Cyprus case, Papasavvas, may enable the EU Court of Justice to weigh in. 

The internet news site Delfi published up to 330 articles a day.  As is now common on newspaper sites, the website had an ‘add your comment’ section at the end of each article.  The comments were not routinely moderated, although there was evidence that on some occasions the site had proactively removed comments.  Comments containing certain obscene words were automatically deleted.  There was a notice and takedown facility for victims of defamatory comments.  Any reader could mark a comment as abusive and it would be taken down expeditiously.  About 10,000 comments a day were posted, the majority under pseudonyms.  Once a reader posted a comment s/he had no further ability to amend or remove it.  
185 comments were made about a particular article on the day of publication and the following day.  Six weeks later Delfi received a complaint about 20 of them from the claimant’s lawyers and removed those comments on the same day.

The claimant then sued Delfi for damages for defamation. The first instance county court found in June 2007 that the news site was protected by the Estonian implementation of the ECommerce Directive hosting protection.  Delfi could not be considered a publisher of the comments and had no obligation to monitor them. (The latter reflects Article 15 of the ECommerce Directive, which prohibits Member States from imposing general monitoring obligations on conduits, caches and hosts.).
In October 2007 the Tallinn Court of Appeal allowed an appeal on the applicability of hosting protection and remitted the case back to the county court, which duly found that hosting protection did not apply.  It went on to find that the news site was a publisher and had not fulfilled its responsibilities under the Estonian Obligations Act. Certain of the comments were found to be defamatory.  The news site was held liable for them and ordered to pay EUR320 damages. 

In December 2008 the case returned to the Tallinn Court of Appeal, which upheld the county court decision.  In June 2009 the Estonian Supreme Court dismissed Delfi’s further appeal.  It upheld the lower courts’ interpretation of the hosting provisions of the ECommerce Directive. Its decision, as reported by the ECtHR, was that:
“an information society service provider, falling under … the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored.  
In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments.
The fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment. It enacted the rules of comment and removed comments if the rules were breached.
The users, on the contrary, could not change or delete the comments they had posted; they could merely report obscene comments. Thus, the applicant company could determine which comments were published and which not. The fact that it made no use of this possibility did not mean that it had no control over the publishing of the comments.”
This judgment pre-dated the CJEU decisions in both Google France v LVMS (23 March 2010) and L’Oreal v eBay (12 July 2011).  Those decisions have elaborated and clarified the scope of the hosting protection, in particular the circumstances in which a commercial operator may be regarded as a host. 

It is difficult to conceive that the Estonian Supreme Court could have approached the position of Delfi in the same way had those decisions been available in 2009 at the time of its judgment.  The CJEU decided that:
-         The role played by the service provider must be neutral, in the sense that the service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored.

-         Google was capable of being a host in relation to the content of advertisements submitted by users of its keyword advertising services.  In particular:

o   Concordance between the keyword selected and the search term entered by an internet user was not sufficient of itself to fix Google with knowledge of, or control over, the data entered into its system by advertisers.

o   Remuneration (and thus the existence of an economic interest in the relevant content) did not preclude hosting status.

o   Neither did controlling the order of display of advertisements according to remuneration, setting payment terms, or providing general information to clients.

-         eBay was capable of being a host in relation to offers by sellers of goods on its online auction platform

o   But where it provided assistance to sellers by, in particular, optimising the presentation of the offers for sale in question or promoting those offers, that would amount to an active role in relation to those offers for sale.
In the light of these two decisions most of the grounds apparently relied upon by the Estonian Supreme Court to hold Delfi not to be a host would not now be permissible.  Integration into a non-intermediary environment is no bar to hosting protection.  An ‘invitation’ to post comments (by having an ‘add your comment’ box) implies no closer control or lesser neutrality than either Google or eBay manifested in relation to keyword advertising or online sellers. An economic interest in the volume of information provider by users is not a bar.  Neither is setting rules for users.    
eBay also establishes that it is wrong to approach hosting protection as a broad overall status.  It applies to specific activities at a granular level.  So acting non-neutrally in relation to some user content does not affect hosting protection for other user content for which neutrality has been maintained.  Individual decisions by a news site to moderate or remove some reader comments therefore cannot be relevant to consideration of the availability of hosting protection for unmoderated comments.
Only the inability of the user in the Delfi case to withdraw the comment remains as a novel point, albeit one that on the wording of the Electronic Commerce Directive itself appears to have little merit.
The ECtHR was thus faced with making an Article 10 evaluation of the consequences of what was most likely to have been an impermissibly narrow interpretation of the ECommerce Directive hosting protections.
The ECtHR declined to step into EU law territory and determine whether that interpretation was correct.  Although it heard argument on the Google France and L’Oreal v eBay cases, the Court said that it was not its role to take the place of the domestic courts, but only to determine whether in the result Delfi’s Article 10 rights had been infringed. According to the Court they had not.
The trouble is that once the Court accepted the Estonian courts’ view that Delfi was not an intermediary, the die was cast. The Court’s subsequent Article 10 analysis rests on the suspect basis that Delfi was a publisher of the readers’ comments and thus had some primary responsibility for them, rather than was acting qua intermediary in relation to them.
Yet that suspect characterisation of Delfi’s activity is the very reason why the national court found it liable.  How, one might ask, can the Court conduct a proper Article 10 evaluation of the liability attached to Delfi’s activities if it constrains its characterisation of those activities by reference to the very court decisions which are said to have wrongly interfered with the applicant’s Article 10 rights?
So for instance when the Court, while discussing Delfi’s take down mechanisms, refers to Delfi’s “duty to avoid causing harm to third parties’ reputations” and its “duty of diligence”, from whence do these duties in relation to third party comments spring?  It can only be from the fact that the Court has predetermined Delfi’s status to be one of publisher rather than intermediary, by deferring to the national court’s decision that Delfi’s activity was governed by the Estonian Obligations Act.  It is difficult to conceive of such a duty being consistent with the position of neutral intermediary.
When we are in intermediary territory a different balance has to be drawn.  Indeed freedom of expression is at the heart of the ECommerce Directive’s intermediary liability protections, reflecting that there is a general interest in not imposing liabilities or content monitoring obligations on intermediaries, as the engines driving the free flow of information.
So if Delfi was based on the assumption that Delfi was a publisher, can the decision be sidelined as having no application to genuine online intermediaries? Possibly. But it could also be argued that the Court’s findings as to Article 10 apply to anyone in a factual position analogous to that of Delfi, regardless of the legal status accorded to it by the domestic courts. 
It would have been better if the Court had stated clearly whether on the facts before it the Court itself regarded Delfi as being in the position of an intermediary or a publisher, then analysed the Article 10 questions in that light, rather than defer to the decision of the national court on a point that so fundamentally affects the Article 10 analysis. As it is, the Court has proceeded on an artificial basis set by the national court that Delfi is deemed to have published the readers’ comments.
In any event Delfi’s activities were close enough to being those of an intermediary (and probably would generally be regarded as intermediary activities) that the decision has the potential to weaken thehuman rights foundation of intermediary liability protections. 
That is particularly so if the Court’s more general comments are taken as applicable to intermediaries rather than publishers. The Court expounded on the responsibility of those who professionally publish articles on a commercial basis to anticipate the responses of others: 
“the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.
It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments.
Thus, the Court concludes that the applicant company was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations. [86]”
This obligation was founded not on the controversial nature of the original article itself, which the court acknowledged was “a balanced one, a manager of the shipping company was given the opportunity to provide explanations, and the article contained no offensive language.”, but on the likely broad interest of the article and the alleged general reputation of reader comments on the site. 
In view of the Court’s emphasis on the professional and commercial character of the Delfi site, it seems unlikely that its logic would necessarily apply to comments on, say, a blog.  However many amateur or semi-amateur blogs do take advertising and the Court’s reasoning could apply to those, at least if they reach a certain size, reach or popularity.
The court went on to factor in anonymity, observing that it was Delfi’s decision to allow anonymous comments by non-registered users, and that by doing so “it must be considered to have assumed a certain responsibility for these comments”. 
Finally the court took a shot at the internet:
“The Court is mindful, in this context, of the importance of the wishes of Internet users not to disclose their identity in exercising their freedom of expression. At the same time, the spread of the Internet and the possibility – or for some purposes the danger – that information once made public will remain public and circulate forever, calls for caution.”
If Delfi is not referred to the Grand Chamber, the forthcoming CJEU case of Papasavvas, a reference from the Nicosia District Court lodged in July this year, may present an opportunity to start undoing the Delfi damage. 
The CJEU is in part a human rights court.  It has long treated the ECHR as part of EU law.  EU law now explicitly incorporates the EU Charter of Fundamental Rights.  SABAM v Scarlet and SABAM v Netlog show that the CJEU can give Article 10 ECHR and Article 11 of the Charter significant weight in the context of the internet. 
Like Delfi, Papasavvas concerns the position of a news website under the ECommerce Directive. Unlike Delfi, the questions relate to material provided by employees and freelance journalists, rather than comments by readers.  While therefore the questions asked do not bear directly on the Delfi facts, they are sufficiently close that Papasavvas could provide the CJEU with the opportunity to emphasise the importance for freedom of expression of maintaining the breadth and substance of intermediary liability protections.