Spanish court fines Internet forum administrator €6000 for not removing posts
Published on September 26, 21012, the judgment of June 1st 2012 has been issued by the Provincial High Court of Toledo and confirms a previous a criminal courts' decision in which the author and the administrator were declared jointly and severally liable for serious defamation. The defamatory comments were directed against a public prosecutor and the president of the High Court of Justice of Castile-La Mancha, attributing to them, among other things, fascist and despotic behavior. For the High Court these claims are "clearly offensive and unnecessary to express a dissenting opinion or legitimate criticism."
Insulting remarks had been happening for some time, and the administrator had removed some of them in the past, without any court intervention. For the High Court, such developments show the administrator was "fully aware of the fact that without a judicial statement, he had the duty of care to prevent insulting remarks." Emphasizing the administrator's duty of care, the court found that
such reiteration of insulting comments makes him all the more responsible, as the duty of care over the contents is strengthened to the point where, reasonably, he should have prevented the author from accessing the discussion board.
In Spain, the Information Society Services Act 34/2002 ("LSSI Act") transposing EU E-Commerce Directive 2000/31/EC states that ISPs are generally under no obligation to do any proactive monitoring on everything that is published. But ISPs must apply diligence in removing illicit content when 'knowledge' exists. There is an on-going debate in Spain on whether such knowledge only exists when triggered by a judicial declaration, as the LSSI Act expressly mentions, or whether knowledge can be assumed through other circumstances, as case law has mostly supported. This ruling adds to uncertainty as to when platforms can benefit from the hosting provider safe harbor in Spain.