Destructive reaction: can I make a harmful message disappear? (cont’d)
(c) Location: harmful message on a third-party website
Just because a harmful message has been published on a website belonging to a third party does not make its removal impossible. The challenge will lie in identifying the person whom the company may contact and who will be likely to give a positive response to its request.
If the intermediary’s role in relation to the message is not purely technical, automatic and passive (e.g. if the author is merely following the intermediary’s instructions or is under the intermediary’s authority), the intermediary will be held liable in its capacity as publisher [Note: ECJ, 23 March 2010, Google France SARL & Google Inc. v Louis Vuitton Malletier SA e.a., cases C-236/08 through C-238/08, §113 (available online).]. In all other cases, the AISS (in accordance with Directive 2000/31/EC) states that the intermediary who stores the message may be found liable for the message if it has actual knowledge of the unlawful message and if it does not act expeditiously to remove the message upon gaining such knowledge.
Therefore, if the company can prove the unlawful nature of the harmful message, it can inform various intermediaries thereof, all of which will be in a position to limit access to the relevant message or even remove it:
- the publisher or the website administrator
- the website owner, if different
- the web host, if different
In the case of Janssens-Quidam, the harmful photo and comment were published by a man called Patrick (the author) on the blog of Anna (the publisher) that focuses on denouncing companies with labour- or animal-unfriendly practices, http://exploiters.companycriticism.be. This is a subsection of the www.companycriticism.be website, whose owner is Yannick, who authorises his online contacts to create one blog per topic. Finally, the website runs on the servers of CriticWebHosts SA, web host. Janssens-Quidam could therefore have informed three different people (in addition to the author) of the unlawful nature of the message.
Depending on the specific role of each intermediary, it will either be deemed to be a publishing intermediary or a hosting intermediary (and will therefore be either directly liable, or potentially liable).
In reality, the situation of potential liability of hosting intermediaries is easily abused, as the threat of liability has led many hosting intermediaries to remove content even in cases of obvious lawfulness [Note: N. Villeneuve, ‘Evasion Tactics’, Index on Censorship 2007-36(4), pp. 74-75 (available online), which mentions the fact that the authors of studies in the United Kingdom and the Netherlands had placed public domain documents on websites, before contacting web hosts using fake identities and claiming that the website in question infringed upon copyright.], without examining whether the relevant content was lawful or not.
So as to avoid being (later) criticised for a misuse of procedure, it is advisable for the company to draw the hosting intermediary’s attention to its own obligation to verify the unlawful nature of the message.
In case of refusal, or if the company foresees that attempts to contact intermediaries will be futile, judicial proceedings remain an option. While the judicial system can never match the speed of transmission of information on the Internet, it is possible for a company, on the basis of the alleged unlawful nature of the message, to attempt to obtain in the space of a few hours an order for the publication of a rectification message. This would occur in the framework of (urgent and provisional) unilateral proceedings filed before the president of the Court of First Instance or of the Commercial Court [Note: See e.g. President of the Court of First Instance of Antwerp, 24 November 2010, Auteurs & Média 2011/4-5, p. 565.].
If the company wishes to obtain more than a rectification message, it can always file proceedings on the merits against the intermediary, claiming that the intermediary is liable and requesting the removal of the relevant message. In practice, though, it is unlikely that such proceedings on the merits will give rise to a quick and therefore effective and efficient solution (unless the writ of summons is sufficient to obtain the desired reaction).