CJEU on Applicability of the Safe Harbors to Free-of-Charge Websites

CJEU seems to be on copyright spree these days. Technische Universität Darmstadt C-117/13 [decision], Deckmyn C-201/13 [decision], Commission v Council C-114/12 [decision], Pez Hejduk C-441/13 [decision] and Art & Allposters C-419/13 [opinion] are all the cases I hope to be able to come back to on this blog. While these cases can wait, CJEU’s new ruling – Papasavvas C-291/03 – on safe harbours can not.
Papasavvas involves pretty “disoriented” CJEU reference from the Cypriot court [reported before here]. The court wanted to know all sorts of things, but mostly whether: a) E-Commerce Directive safe harbours also apply to services that are provided free of charge, b) if so, whether newspapers could invoke any of the safe harbours for its editorial content [sic!]. Cypriot court also tried to use the country of origin principle and to rewrite European history of direct effect of the directives, but CJEU very quickly made clear what is the rule [“the Court wishes to inform the referring court that ..”].
Background. On 11 November 2010, Mr Papasavvas brought an action for damages before the Cypriot court against a newspaper company, and against its Editor-in-Chief and an another journalist at that newspaper, for acts which, in his opinion, constitute defamation. Mr Papasavvas seeks damages for harm allegedly caused to him by articles published in the daily national newspaper and, which were published online on two websites (http://www.philenews.com and http://www.phileftheros.com). He requests also the national court to order a prohibitory injunction to prohibit the publication of the contested articles.
  • Free of charge, still covered?
Cypriot court asks about the concept of ‘information society services’, which is a precondition of all the safe harbours. It wants to know whether this term covers also provision of such online information services for which the service provider is remunerated not by the recipient, but by income generated by advertisements posted on a website. This questions has following source: Article 2(a) of Directive 2000/31 defines the terms ‘information society services’ by making a reference to Article 1 of Directive 98/34, which refers to any service ‘normally provided for remuneration’, at a distance, by electronic means and at the individual request of a recipient of services. 
The answer of the CJEU is very predictable – of course, as long as its an economic activity such as service running on advertising. Although predictable [due to Art. 57 TFEU], the answer by the CJEU, however, is not particularly clever one. What about websites that are run non-profit such as Wikipedia? Should they disqualify just because they have decided not to carry any advertising? Or are they also an economic activity? This is why I argued in my book that even potential economic activity should suffice. In any case, I would not immediately infer from this that Wikipedia is not anymore covered. But CJEU should have had taken this more into account when replying.
  • Does editorial content of newspapers qualify for safe harbours?
Another question related to whether editorial content of newspapers can qualify for one of the safe harbours. Instead of rejecting this invitation by pointing to the need of information to be provided by the recipient of the service, CJEU rather started invoking its case-law on what it means to be “an intermediary”, i.e. to be passive, not providing assistance etc. It is no surprise then that CJEU instead of using more suitable argument of source of the information at hand [employed or contracted journalists], comes up rather with following argument:
45      Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website 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.
The problem of this is what it does not say. Namely, that this can be objected with pretty much any service out there. Carving editorial content out of safe harbours by referring to knowledge is probably the worst strategy the Court could have taken. Not being enough, CJEU then accepts invitation to add this argument to the context of the referred question – which I bet with you – will be misrepresented many times in the future:

46      In the light of the foregoing, the answer to the fifth question is that 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.

No, it does not say what it states. But you need to read the context first to get that. 

  • Are safe harbours directly invokable in horizontal relationships?
Some context for US readers first. In the European Union, the Directives oblige only Member states. This means that if the state fails to implement them, you generally can not use them as a supplementary source of law, i.e. apply/invoke it directly [there are some exceptions for vertical relationships]. In the horizontal relationships [individual vs. individual] it is more than settled that only indirect effect [interpretation in the light of the Directive] is possible. CJEU here confirms again obvious. Safe harbours have no direct horizontal effects. So if the state fails to implement them, individuals can not invoke provisions of the Directive in their disputes.
All in all, I don’t think this decision brings anything new. Perhaps only new sources of certain confusions.

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