On February 10 the Supreme Court upheld the conviction administrator alasbarricadas.org for some opinions in your forum against Mr. Ramoncín.
What happened?
The forum of that site appeared words prejudicial to the honor of the aforementioned characters plus a montage of similar tone. These views of course had been issued by third parties, not by the board administrator.
Is responsible for the board administrator?
clearly not responsible intrusion of honor.
Why then is convicted?
honor The intrusion was not disputed in this process and the administrator has not been convicted. The problem is not complied with the obligations imposed LSSICE providers of information society.
The liability of directors under the applicable rules: And Directive 2000/31 LSSICE
There is no obligation to monitor the data previously may be unlawful if
The Law 34/2002 of the Society of Information Services and Electronic Commerce translation involves the law of the European Directive 2000/31/EC . This directive, article 15, does not impose on service providers "a general obligation to monitor the information to transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity, for services provided for in Articles 12, 13 and 14.
Conditions to be exempt from liability for illicit data
Thus Article 14 of the Directive provides for exemption from liability for hosting illegal data may be e articulates his provision in our domestic law in Article 16 the LSSICE as follows:
"a) not have actual knowledge that the activity or stored information that is unlawful or harms property or rights of any party liable for compensation, or
b) If they do, their best efforts to remove or make it impossible to access them. "
The key is therefore the actual knowledge .
What is actual knowledge?
LSSICE himself defined by Article 16:
"means that the service provider has actual knowledge referred to in paragraph a) when a competent authority has declared the illegality of data, ordered their withdrawal, refused access to them, or b) had declared the existence of the injury, and know the appropriate provider resolution without prejudice to the procedures for detection and removal of content providers that applied under voluntary agreements and c) other means of effective knowledge that may be established. "
is, when the head is informed by an administrative or a judicial decision. There can be no other means but that could be established (and in those "other means" supports the Supreme Court)
Did actual knowledge by the forum administrator?
was not to the extent indicated by the LSSICE, since neither communicated with him was an administrative or a judicial decision, and "other means" will highlight the importance of which later were impossible for lack of diligence is found by the court, the owner of the forum.
Initially the applicant was attempting to communicate with the head of the forum by sending two bureaufaxes, but these were not effective because the information was made available on the web was not consistent with the requirements of LSSICE or updated.
After that, he hired a private detective and once ascertained the identity of, the lodged a complaint. The contents were removed after the answer to the complaint, without the benefit of the resolution or court injunction.
What legal obligations is the responsibility of a forum?
Not just a forum, but for any service provider LSSICE establishes disclosure requirements. In particular art. 10 requires, inter alia, the obligation:
"have the means to both service recipients and to the competent organs, electronic access, permanently, easy, direct and free to the following information:
a) The name or corporate name; residence or domicile or, failing that, the address of one of its permanent establishments in Spain, his email address and any other information which would enable him to establish a direct and effective. "
a) The name or corporate name; residence or domicile or, failing that, the address of one of its permanent establishments in Spain, his email address and any other information which would enable him to establish a direct and effective. "
What are these "other means" of knowledge effective?
The Supreme Court held that to apply the exemption from liability regime should comply with the advertising media to which the law requires.
This article will consider what these other means of effective knowledge "equal value" actual knowledge that the legal " to the one obtained by the service provider from facts or circumstances to enable eligible but logical inferences immediately or within everyone's reach, an effective understanding of reality in question. "Knowing that this is an interpretation more in keeping with the spirit of the directive that prevents Internet becomes a field of impunity.
The Court agrees that as was proven in previous instances, communication the administrator of the affected was impossible in terms of the LSSICE.
And with the updated data according to LSSICE do I have to remove any content that I ask for a particular?
This is the real problem that introduces this sentence, there is not an administrative body with jurisdiction or a court order telling me that some contents are illegal and therefore to be removed.
The Supreme Court considered along with the District Court: "that both the photo and the expressions used are an interference with the applicant's right to honor the obvious and said that was not accurate judicial decision to declare the wrongfulness of their content. "
And this is a problem: I can violate the rights of others
words, the Supreme Court grants the person responsible for the Web or the forum, the ability to decide who is and who is not an illegal content, obviating in the interests of justice, this decision may violate other rights such as freedom of expression of who gets that content.
Do we know all it's an illegal patent?
Internet is a field of view and host a forum, especially when this has a certain ideological bent, is that we become a privileged participant in society. To the extent that the Internet can not be a territory with impunity is understandable given this responsibility to service providers.
With great power comes great responsibility.
To learn more:
Case Judgement Ramoncín alasbarricadas.org PDF vs
