ISP liability and the right to oblivion: a recent Spanish ruling

Do not forget Spain.  Notwithstanding the fact that it is somewhere outside main European thinking when it comes to unitary European patent packages (on which see, most recently, Matthias Lamping's earlier Katpost here) and that so much of it faces dreamily outwards towards the Atlantic --  that sparkling cradle of aspirations -- instead of gravitating towards the centre of Europe where all the money is, Spain remains a major player in continental European jurisprudence. It is a country with a large domestic market, a good deal of creative flair and a judiciary that is increasingly beginning to appreciate that it is facing a new legal order of things.  This is why the IPKat is so pleased to host this piece from Fidel Porcuna (Bird & Bird) on a recent Supreme Court decision which clarifies the (lack of) an internet service provider's liability in an action that tests out the limits of an individual's right to oblivion:

 An exciting new judgment of the Spanish Supreme Court [STS (Civil Chamber) of 4 March 2013 no. 144/2013, Miguel v. Google Inc.] fixes the meaning of the term "actual knowledge" used by Directive 2000/31 (the E-Commerce Directive) so as to delineate the liability of service providers. It also has an impact on the applicability of the Spanish Law 34/2002 of July 11 on Information Society Services to entities established in third countries, and represents a useful reference in the context of the right to oblivion.

The US company Google Inc. was sued by Mr Miguel, who sought the withdrawal of Google's link to a number of news websites, including "PRNoticias" and "Aqui hay tomate" ("in English, "something's up").  The news claimed that Mr Michael had participated in an influence-peddling network whose participants were being investigated as part of a police operation called Malaya -- a name whose meaning is no longer unknown to the readers of MARQUES's Class 46 (see post here). Google had previously refused a cease-and-desist request from Mr Miguel, suggesting that he should address that problem with those responsible for the news websites. The lawsuit was dismissed at first instance in a decision that was confirmed by the Appellate Court and subsequently by the Supreme Court, thus definitely absolving Google of all claims for liability. There are five outstanding aspects of this case:

1. The Spanish Supreme Court interprets the liability of hosting providers in accordance with art.14 of the Directive. Accordingly, such a liability is not conditional upon there being an earlier previous court or authority decision declaring that the information hosted or linked to by a provider is illegal (as would be in principle necessary on a literal interpretation of the Spanish e-commerce laws). Rather, the provider's knowledge of "facts or circumstances from which the illegal activity or information is apparent" would suffice.

2. In this case Mr Miguel insisted that he repeatedly reported to Google in Spain that the information was false, that he had already brought legal proceedings against the newspaper that first published the story, and that the latter had expressly acknowledged in an amicable settlement that such story was false. Mr Miguel also claimed that, following its communications, Google should have known that the court that approved such an agreement had also recognized by then that the story was false. Mr Miguel was confident that Google would be found liable for not withdrawing the links, according to the Supreme Court's doctrine on hosting provider's liability.

However, the Supreme Court concluded that Google had not, and could never have had, "actual knowledge" of the illegal character of the linked content. The Supreme Court noted that Mr Miguel at no time provided Google with a copy of the agreement with PRNoticias, and that the judge who approved the agreement between Mr Miguel and PRNoticias made no judgment as to the falsity of the news, but it merely found that PRNoticias had recognized such falsehood. In any case, that ruling was not shared with Google, so Google then had to deal with only an opinion (that of Mr Miguel) and a story which, according to the Supreme Court, could well be either false or true. In these circumstances, Google could not be forced to remove the link to the news. 

3. In the absence of actual knowledge, Google could hardly be said to violate the right to honour and the personal privacy right of Mr Miguel.

4. The Supreme Court noted that Google uses a sales office in Spain to carry out at least part of its activity, on a continuous or habitual manner. This office is owned by Google Spain S.L., whose founding member is Google Inc. Therefore, despite being Google Inc. a U.S. company, the Spanish laws of information society services were applicable.

5. Google was not considered to be an editor of the linked content, but merely as a distributor of information.  Accordingly the court did not apply the Spanish Press Law as requested by Mr Miguel.  Nor could it be considered that Google's chief executive, Eric Schmidt, was responsible for such content.