Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The limitations of civil liability set out in Arts. 12 to 14 of Directive 2000/31 do not apply to the case of online newspaper websites which are remunerated by income generated by commercial advertisements because they have knowledge of the information posted and exercise control over it regardless of whether access to such a website is free of charge.
The dispute in the main proceedings concerned an action for damages, brought by Mr. Sotiris Papasavvas, before the Nicosia District Court, on 11 November 2010, against a Cypriot newspaper company (O Fileleftheros Dimosia Etairia Ltd), its Editor-in-Chief and journalist, Mr. Kounnafi, and a second journalist, Mr. Sertis, for acts which allegedly constituted defamation.
The District Court of Nicosia decided that the resolution of the case pending before it depended partly on the interpretation of the E-Commerce Directive (Directive 2000/31), and therefore, the Court referred the following five questions to the Court of Justice of the European Union for a preliminary ruling:
(1) Whether Directive 2000/31 precludes the application of rules of civil liability for defamation to information society service providers.
(2) Whether the limitations of liability specified in Articles 12 to 14 of Directive 2000/31 are capable of applying to actions between individuals relating to civil liability for defamation, so as to be able to interpret its national legislation in conformity with that directive.
(3) Whether Articles 12 to 14 of Directive 2000/31 must be interpreted as allowing information society service providers to oppose the bringing of legal proceedings against them and, consequently, the actual adoption of interim measures by a national court. Failing that, it asks whether those articles create individual rights which the service provider concerned may plead as defences in law in the context of legal proceedings such as those in the main proceedings.
(4) Whether Article 2(a) of Directive 2000/31 must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers the provision of online information services for which the service provider is remunerated not by the recipient, but by income generated by advertisements posted on a website.
(5) Whether the limitations of civil liability set out in Articles 12 to 14 of Directive 2000/31 are applicable to the case of a newspaper publishing company, operating a website on which the online version of a newspaper drafted by staff or freelance journalists is posted, that company being also remunerated by income generated by commercial advertisements posted on that website. The referring court asks also whether the answer to that question depends on whether or not access to that website is free of charge.
In answering the referring court’s first question, the Court looked at Article 3(1) of the Directive, which stipulated that each Member State was to ensure that Information Society Service providers (“ISSPs”) established in its territory comply with national provisions applicable in the Member State in question. As a result, the Directive did not preclude Cyprus, as Member State, from adopting rules of civil liability for defamation, applicable to ISSPs established in its territory. To answer the second question, the Court first resolves the fifth one, explaining that the factor to be looked at when deciding whether a referencing service can enjoy the exemptions from liability provided for in Articles 12 to 14 of the Directive, is not whether it is subject to payment, but rather, the role played by the provider. Since the limitations of civil liability in Articles 12 to 14 of the Directive concern situations in which an ISSP is a ‘mere conduit’ of a merely ‘technical, automatic and passive nature’ (by reference to precedent such as Google France and L’Oréal and Others), the online version of ‘O Fileleftheros’ does not fall within the scope of the Articles because the website’s publisher has knowledge about the information which it posts and exercises control over it.
Having established that the online version of ‘O Fileleftheros’ newspaper is not considered to be an ISP within the meaning of the Directive, the Court considered that it was not necessary to answer questions two and three. Nevertheless, the Court resolved the second question by establishing that the limitations of civil liability specified in Articles 12 to 14 of the Directive are capable of applying in the context of proceedings between individuals relating to civil liability for defamation, where the conditions referred to in those articles are satisfied. In answering the third question, the Court ruled that Articles 12 to 14 of the Directive do not allow ISSPs to oppose the bringing of legal proceedings for civil liability against them and, in consequence, the adoption of a prohibitory injunction by a national court. The limitations of liability provided for in those articles may be invoked by the provider in accordance with the provisions of the national law transposing them or, failing that, for the purpose of an interpretation of that law in conformity with the directive. By contrast, in the current case pending before the Court, the Directive cannot, in itself, create obligations on the part of individuals, and therefore, it cannot be relied upon against those individuals.
Regarding the fourth question, whether the remuneration referred to in Article 1 of the Directive (dealing with any service ‘normally provided for remuneration’, at a distance, by electronic means and at the individual request of a recipient of services) must necessarily be provided by the recipient of the service him or herself. The Court held that Article 2(a) of the Directive must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers the provision of online information services for which the service provider is remunerated. The ISSP is remunerated not by the recipient, but by income generated by advertisements posted on a website. In reaching that decision, the Court relied on the exclusion provided by recital 18 in the preamble to the Directive, in the light of which Article 2(a) must be interpreted, which stipulates that information society services extend, insofar as they represent an economic activity, to services “which are not remunerated by those who receive them, such as those offering on-line information or commercial communications.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In a way, Papasavvas v. O Fileleftheros is similar to Delfi AS v. Estonia–a case in which the Court considered whether there was a breach of freedom of expression in finding the journalists in question were liable for defamation. Despite the fact that there is a significant factual distinction between the two cases (Delfi concerns liability for user generated content, as opposed to journalism), it is of particular interest that although the Court in Delfi assessed the significance of Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms, Papsavvas did not even contemplate whether there was a freedom of expression argument in the issue at hand.
This decision is, in fact, foreseeable. While the omission of such arguments might initially seem as if the case established a decision which, in essence, constricts freedom of expression; in reality, in ruling that the online version of ‘O Fileleftheros’ does not fall within the scope of Articles 12 to 14 of the E-Commerce Directive, the Court barely creates a new precedent. Rather, it merely reiterates the discernible provisions of the Directive: where the activity of the information society service provider is not of a mere technical, automatic and passive nature, this implies that the information society service provider has knowledge of and control over the information which is transmitted or stored.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This decision confirms that all online news publishers in the EU may be liable for unlawful material published on their websites and that the hosting defense will not generally be available to online newspapers which are free to access and funded by advertising.
Let us know if you notice errors or if the case analysis needs revision.