On 11 September 2014 the European Court of Justice decided that libel claims can also be lodged against the publisher of newspapers that are posted online. The argument that online newspapers are merely ‘intermediaries’ that pass on information does not hold up.
This dispute was prompted by a number of articles published in a Cypriot newspaper. These articles were then also posted online on two websites. Applicant Papasavvas claimed that these publications were libellous and therefore constituted an unlawful act. The Cypriot judge asked questions of interpretation about the liability of service providers that function as intermediaries, specifically: under what circumstances – from a legal perspective – is there a case of an intermediary, storage or hosting services.
The Court ruled as follows with regard to the liability of providers of these kinds of services in the information society, which are offered by intermediaries. Intermediaries are only exempt from liability if their activity is ‘purely technical, automatic and passive in nature, entailing a lack of knowledge or control of the information passed on or stored.’
The question is how neutral a role the publisher of an online newspaper has. The Court ruled that there is an active role:
‘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” (…) whether or not access to that website is free of charge.’
This also means that the newspapers cannot invoke as a defence the claim that they are merely intermediaries in order to avoid liability because of damage compensation or an injunction against libel.
By Joost Becker