RSS re-publishers are liable for unlawful content
OUT-LAW Radio, 17/04/2008
We report on the French court ruling that could put many a
publisher off using RSS feeds
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to Out Law Radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee, and this week we investigate some of
the dangers of web 2.0 with the revelation that for the first time
a court has found a website responsible for the content of
publishers through RSS.
But first, the news:
Privacy watchdog wants business to reveal data losses; and Music
industry demands iPod tax
The privacy watchdog for EU institutions has called for a
planned requirement for telecoms companies to publish details of
information security breaches to be extended to banks, businesses
and medical bodies.
The European Commission has proposed a data breach notification
law which would force telecoms companies to tell customers when
personal information had been lost. The European Data Protection
Supervisor has said that if the proposal is designed to help
prevent identity theft it must be extended to include banks,
businesses and others.
Controversy surrounds plans for data breach notification laws
because they are opposed not only by many businesses but also by
some privacy and data protection experts.
The EDPS said that in the US the existence of a security breach
notification has been a factor that drives up investment in
security.
The UK music industry has rejected the Government's proposal to
legalise the transfer of music from CDs to MP3 players without a
levy. It has asked for a tax on devices like Apple's iPods which it
said should compensate artists for the transfer.
The Government has proposed legalising the format shifting of
music to computers and MP3 players as long as the CD was paid for,
the transfer happens just once and is for personal use only.
Currently the practice, which is near ubiquitous amongst MP3 player
owners, infringes copyright law.
The Music Business Group, an umbrella group of trade bodies
representing music managers, songwriters, publishers and performers
has proposed a levy on the devices that might play transferred
music, principally MP3 players. That levy, or licence, would be set
not by the Government but by industry in negotiations with device
makers.
That was this week's OUT-LAW news.
The modern internet is now mostly made up of other people's
stuff. Whether it be blog comments, cross posts, message boards or
mash ups, web publishing is these days as much a question of
assembly and re jigging as it is of creation.
One of the most popular ways to bring other people's content on
to your site is RSS, or Really Simple Syndication. Out Law has
discovered that a landmark ruling in France in March found that a
site operator was responsible for any unlawful content which comes
through that RSS feed.
The collaborative internet has just become more dangerous.
RSS is a means of sharing content – usually headlines and a brief
summary – between sites or from one site to an individual computer.
When new stories are published on one site they appear
automatically on any others that use that site's RSS feed.
Three French websites, though, have just been found liable for
material that appeared on their sites automatically via RSS. They
argued that they had no editorial role in actually publishing those
specific stories, but the court found them responsible.
The ruling, which could change the nature of RSS in France, is
thought to be the first time that any court in any country has held
someone responsible for someone else's RSS feed.
The case involved Olivier Dahan, Director of the double Oscar
winning Edith Piaf biopic La vie en Rose. Dahan sued three sites -
Planete Soft, Aadsoft and Lespipoles – for invasion of his privacy
in relation to stories about him and actress Sharon Stone.
Emmanuel Asmar was his lawyer.
Asmar: That case that was the - you
know what an RSS is - it's a link. It's a very specific link but
this link provides of course the link plus some short resumé of -
short summary sorry - of some content. We won. The judgment said.
We won first on the author, on the original author of the
information. Second, it was on the link. They were sentenced
because they published the link.
The court rejected the site owners' arguments that they were not
editorially involved in the story. From a rough translation by
OUT-LAW , its ruling said:
"The defender has, in signing up to the order and organising
them according to their themes, acted as an editor and must
therefore assume responsibility for the information which is
displayed on his own site.
In this particular case the RSS reader displayed information not
only made up of a simple link but both the title and the snippet of
the information appeared. "Sharon Stone and Olivier Dahan, the star
has a romantic embrace with the director". This was sufficient to
constitute an attack on his private life."
The implications of the ruling could be enormous in France. If
your website subscribes to someone else's news feed you're unlikely
to be able to vet every story that appears from the feed. This
judgment may put French publishers off using RSS feeds altogether.
Publishers outside France will simply hope that their own courts
don't follow it.
Asmar is the lawyer behind another recent crucial judgment in
which bloggers and a web publisher were found liable for invasion
of privacy because they published a link to material on someone
else's site.
Kylie Minogue's ex boyfriend Olivier Martinez sued two bloggers
and one publisher of reader submitted links successfully.
Asmar: On behalf of Olivier
Martinez we sued on the basis of violation of his private life
privacy. Different types of websites that were publishing the news
regarding his private life which was at the time, was he or not
coming back with Kylie Minogue. And he asked me to sue them to
protect his private life. We sued everybody and actually we won
against everybody. And the new thing about these rulings is - these
judgments - they said that they were not responsible for the
contents since they were not editor, they were only services
providers. And the judge said: no, once you decide to publish
information which by nature is an attempt or a violation of the
private life of anybody, you're responsible for that.
The rulings could have been more severe. The publishers were
ordered to pay between €500 and €800 plus €1000 in costs each
because the judge noted that not many people had viewed the
material.
But the principle has been established.
Media law expert Kim Walker of Pinsent Masons, the law firm
behind Out Law, said that these issues are largely untested in the
UK courts.
Walker: For there to be defamation
under UK law, defamatory material has to be published and you can
only be liable as a publisher if you are instrumental in making
that material known to the public. And I think it would be argued
presumably that by providing a link you are effectively letting the
world find out about that defamatory material and you have taken a
positive act by putting the link up on your site to publish the
material. There have obviously been a number of cases on defamation
via the internet but they've all been direct, much more apparent
publication where defamatory material has been posted or hosted.
I'm not aware of any cases in the UK where it's been disseminated
by a link.
Walker said, though, that judges in the UK might be wary of
setting too strict a precedent when it comes to responsibility for
linked to material.
Walker: I suppose it would have a
potential chilling effect on linking and I should also say that I
think it's unlikely that the use of a disclaimer would actually
necessarily get you out of liability. The internet is based on
linking and I would have thought the courts would try hard not to
produce a result that meant that linking became less and less
prevalent. In reality I think linking would obviously still
continue because that's what the internet is all about.
The risk in the UK is less to do with privacy and more to do
with responsibility for linked to material that might be
defamatory.
In fact there could be a century old precedent that's already
established exactly that liability.
Though there was no internet in the nineteenth century there
was, from 1870, the Defamation Act. In 1894 the Court of Appeal
made a ruling which has been cited since in defamation cases, and
which may well influence any future case.
In Hird versus Wood the court heard that a man who sat beside a
roadside placard containing defamatory material was liable for that
defamation simply because he was drawing the attention of passers
by to it.
Walker said that it would be a fair analogy to use for
hyperlinking.
Walker: I think it's a very good
analogy. The English common law is based on precedents and that is
a precedent, clearly a precedent. So it's the sort of case that
would be brought up and argued.
Asmar said that the ruling is already having an effect in
France, and that other celebrities are filing cases based on it. It
will, he says, change the way that publishing works there.
Asmar: I think it's going to be a
precedent. And now we see a lot of people suing, websites before
the French courts.
Magee: Since this ruling?
Asmar: Yes. Well they’re certainly
going to think twice and they're going to think whether they can
afford being liable for that and maybe they going to be able to pay
any sentence. They should, maybe be sentenced or they're going to
say well no, we're not going to publish it. So in terms of
liability it's - they're liable for what they do.
It's impossible to say how the UK courts will deal with a libel
linking case, but it could well be that the future of the links
based internet in the UK will be strongly influenced by these
ancient and modern rulings involving Kylie Minogue, Sharon Stone
and a Victorian roadside placard pointer.
That's all we have time for this week, thanks for
listening.
Why not get in touch with Out-Law Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
Out Law Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
