According to Associated Press, the former tennis star asked
Microsoft Germany to remove the pictures that appeared on its site,
showing her head morphed to another woman's nude body. Microsoft
complied with her request; but Graf asked the company to sign an
undertaking that they would not appear again. Microsoft refused and
Graf sued.
In October 2001, a lower court ruled in favour of Graf.
Microsoft appealed, but on Tuesday the state appeals court in
Cologne upheld the lower court’s ruling. Microsoft will be required
to pay a fine if similar photos appear on its site in future.
What makes the decision curious is that, according to the press
reports, the area of the Microsoft site in which the photos
appeared was unmoderated. Users are free to post text and images to
this area.
Generally, web hosts in Europe are not liable for the content
that others post to their sites if they do not moderate the site –
provided they remove or disable access to offending material
immediately upon being notified of its presence.
Struan Robertson, editor of OUT-LAW.COM, commented:
“Microsoft refused to guarantee that similar
photos would not appear on its pages in future. Presumably, this is
because it does not want to moderate the site. The full judgment is
not yet available, but it appears from media reports that the court
did not accept Microsoft’s refusal to police the content posted by
users to its site. If that is the case, the ruling will be of
concern to web hosts, because it runs directly against the
important principles established by the E-commerce Directive.”
A German decision of 1998 became one of the drivers for the
E-commerce Directive, when Compuserve’s managing director was
sentenced to two years in prison because the ISP unknowingly hosted
child pornography. Although the case was overturned on appeal, the
original sentence provoked enough industry concern for the
E-Commerce Directive to include the principle that ISPs and other
web hosts are not required to monitor content.
Robertson concluded, “There may be more to this case than we
know at present. But on the face of it, it’s a disturbing
decision.”
A spokesman for Microsoft has said that the company is
“examining further legal steps.”
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