(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here. The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
(1) The court ruled that the news portal that enabled commenting news articles published at its websites did not act neutrally (the activities of the ISP were not merely technical, automatic and passive in nature) as required under Section 10 of the ISSA (Section 14 of the e-Commerce Directive) and therefore the news portal could not benefit from the exemption of liability. (2) The court found that the Supreme Court in the Delfi case had reached a similar conclusion than the European Court of Justice in the Google AdWords case (C-236/08 to C-238/08) meaning that if an enterprise is not providing a service that is of a mere technical, automatic and passive nature, the enterprise cannot be exempted from liability.
(1) The case arose when a popular news portal (Delfi) in Estonia published an article about the ferry connection with the islands in Estonia. The news portal enabled users to comment on news articles. Among the comments were 20 comments that according to the claimant, the majority shareholder of the ferry transport company concerned, infringed his personality rights. The claimant argued that the news portal is liable for the damage incurred. Although Delfi implemented pre-examination of comments (if comments included specific vulgar expressions, the comment was not published), this was seen as an ineffective measure. (2) The Supreme Court upheld previous judgments and reiterated that (i) Delfi is a provider of content services. As such, Delfi governs the content that is stored and should be distinguished from an...
The court found that news portals which enabled uncensored commenting at its website were not liable for the activities of the users of the news portal under Sections 10 and 11 of the ISSA. The court suggested the claimant filed a claim against the commentator which could be identified with the help of the ISP publishing the article.
The Information Society Services Act (ISSA), which is based on the EU e-Commerce Directive (Directive 2000/31/EC), lists three types on services the providers which are exempted from potential liability under certain conditions: (i) mere transmission and access to public data communications network providers (Section 8 ISSA); (ii) caching providers (Section 9 ISSA); and (iii) hosting providers (Section 10 ISSA). The Act also stipulates that the service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or search any illegal activity (Section 11 ISSA).
The draft Copyright Act in its currently available version does not include a special provision referring to Section 1055 of Law of Obligations Act as stated above. The Law of Obligations Act will not, however, be amended in relevant respect. Therefore, in essence no changes are introduced. The estimated time of entry into force of the new Copyright Act is 1 January 2017.