Court of Appeal: no compulsory filtering by Usenet providers

bureau Brandeis / 19 Sep 2014

The court may not make it compulsory for Usenet providers to filter their message traffic. This follows from today’s judgment by the Amsterdam Court of Appeal in the case between News-Service Europe and BREIN.

The district court had previously found News-Service Europe guilty of copyright infringement. The court did not answer the question of whether News-Service Europe could successfully rely on the statutory rules that protect intermediaries such as ISPs. This ruling forced News-Service Europe to cease its activities.

In today’s judgment, the Court of Appeal reversed the judgment of the lower court. As an intermediary, News-Service Europe is not liable for possible copyright infringements by consumers. The earlier judgment of the lower court boiled down to a requirement to install a filter. The Court of Appeal has said that no such obligation may be imposed because it would mean that News-Service Europe would have to monitor its network continuously. This is contrary to settled case law of the European Court of Justice, according to the Court of Appeal. Patrick Schreurs, former CEO of NSE: “We are extremely pleased with this judgment. The Court of Appeal rightly found that a Usenet provider such as News-Service Europe cannot be expected to exercise preventative supervision of the notices posted by others.”

Interlocutory judgment
In this interlocutory judgment, the Court ruled that an intermediary such as News-Service Europe is, however, obliged to implement a so-called notice-and-takedown procedure. News-Service Europe has always said that it already had such a procedure in place. The next step is for the parties to explain to the Court of Appeal how the procedure should work and what other measures might be taken in this regard. “We look forward to this in full confidence”, said Wierd Bonthuis, NSE’s former CFO.

About Usenet providers
The role of a Usenet provider is comparable to that of an ISP (such as Ziggo or KPN). It is a neutral intermediary that offers access to a technological platform, the Usenet, where clients can share notices publicly in newsgroups. A usenet provider does not look at the contents of the traffic generated by users. News-Service.com does not carry out acts having any bearing on copyrights. It does not encourage users to share particular types of messages, nor does it select messages; it merely offers space where messages can be posted.

History
In 2009 Stichting BREIN commenced proceedings against News-Service.com because it was of the opinion that the neutral Usenet provider was independently reproducing copyright-protected works and making them available to the public. BREIN demanded that it cease these activities. The district court imposed a very far-reaching obligation to implement preventative filtering. What this boiled down to was that NSE would have to proactively filter all information posted by Usenet users to find possible copyright infringements. Because it was impossible for News-Service.com to comply with such a disproportionate order, it ceased operations in 2011.

About News Service Europe
Until 2011, News-Service.com was a successful Dutch company. It had offered access to Usenet since 1998. News-Service Europe B.V. was established in 2005. News-Service.com did not provide services directly to consumers, but to Usenet Resellers, ISPs and fellow Usenet Providers.

The judgment of the Amsterdam Court of Appeal is only available in Dutch for the moment, but a translation will be available soon. Earlier press releases are also available on the site of News-Service.com.
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