Czech Republic


SUMMARY (provided by Martin Husovec): (1) Czech law has a only a little experience with application of the general tort law principles to on-line intermediaries. There is no special liability basis for intermediaries. Recently passed new civil law makes no changes in this respect. Safe harbors of e-Commerce directive can especially bar application of the general tort law in cases where wrongful omission could have been established. 

(2) General tort law establishes direct liability of an intermediary when he himself or with his co-tortfeasors full-fills all the elements of a tort by infringing the right of others. This qualification depends on the right that is being infringed, and can be different for different fields of law, e.g. personality rights infringement and copyright infringement can treat an intermediary differently. Own content of an intermediary would usually lead to a direct liability. 

(3) If the intermediary did not act as a direct infringer, he can be liable under one of the following legal institutions: (i) accessory liability (liability as a participant), (ii) vicarious liability (§ 2914 Civil Code), (iii) wrongful omission (§§ 2900, 2901, 2910 Civil Code + absolute right at stake). 

(4) Unlike in the criminal law, accessory liability is not well-developed in the Czech civil law. Even though new Czech Civil Code mentions this type of liability in § 2915, it does not define its preconditions. The Czech courts also seldom distinguish it from other basis of liability. The inspiration of the principles upon which it is based hence comes mainly from the criminal law (similarly as in Slovakia). This requires intentional assistance of third parties in wrongful acts of others. Nevertheless, it is possible that accessory liability under civil law could develop into a more broad concept, where also negligence would suffice. At this point, however, there are no signs of such a move in the case-law. 

(5) Vicarious liability under § 2914 of the Civil Code can apply only to small number of cases. Under this provision the damage shall be considered caused by a legal entity or by an individual also if they were caused by auxiliaries in the course of their activity for the principal. Czech courts so far did not apply the provision to any intermediary scenario. 

(6) Wrongful omission is probably the most important basis of civil liability in the context of intermediaries. As the Civil Code is very new, there is no case-law on this issue in the context of intermediaries, yet. The law, however, enables to hold negligent omission of intermediaries wrongful and attach a liability to such inactivity provided that certain standard of duty of care is breached. Czech law distinguishes cases of negligent wrongful omissions from negligent actions. The former is triggered only in exceptional situations outlined by the law (dangerous activity, close relationship, etc.). 

(7) It is worth mentioning that Czech safe harboring system unfortunately instead of the negative language of the Directive (“is not liable if ..”), uses a positive one (“is liable if ..”), which gives an impression that losing of safe harbors leads to establishment of the liability. First Czech decisions interpreting this provision (Prolux and seems to be embracing this reading. Contrary to what was reported in the EU study, Czech law has no special rules on notice and take down procedure. Injunctions can be issued against intermediaries even if they are not infringing rights of others. In the field of intellectual property law, the implementation of Art. 11 of the Enforcement Directive and Art. 8(3) of the InfoSoc Directive enables this. The relevant provisions are incorporated in Act on Enforcement of Industrial Property Rights and the Copyright Act. It is not yet clarified if the same is possible in the field of personality rights and unfair competition law.


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