Who is the information intermediary and what is his responsibility
Today we will tell
What kind of beast is this?
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Letter of the law.
According to Art. 1253.1 of the Civil Code of the Russian Federation as an information mediator means:
• a person transmitting material on an information and telecommunication network, including the Internet;
• a person providing the possibility of placing the material or information necessary to obtain it using the information and telecommunications network;
• a person providing access to material on this network.
It turns out that hosting providers, Internet service providers and site administrators (domain owners) can be considered information brokers. The latter, however, not always ...
Admins will be considered these same information brokers only if:
• work in the social network mode;
• allow users to leave comments;
• work in forum mode.
What is the answer to the information mediator
As stated by the Civil Code,
“The information mediator is responsible for the infringement of intellectual rights in the information and telecommunications network on a common basis.”
Translated into human language, this very intermediary is responsible for the illegal use of someone else's intellectual property under the same conditions on which any other responsible person would be held responsible.
But there is one very important point: the mediator himself may not violate the rights, more precisely, he himself could not post illegal information, but it was posted by
The law took care of us in this case too. He describes how to correctly identify the guilt of the information mediator. The law tells us that, depending on its functions, the intermediary can be relieved from liability in the aggregate presence of the following circumstances:
Information intermediary transmitting material
1. He is not the initiator of the transfer of material and does not determine his recipient.
2. It does not change the specified material in the provision of communication services, with the exception of changes made to ensure the technological process of transfer of material.
3. He did not know and should not have known that the use of relevant intellectual property or means of individualization by the person who initiated the transfer of the material is illegal.
Information intermediary, providing the opportunity to post material
1. He did not know and should not have known that the use of relevant results of intellectual activity or means of individualization contained in such material is illegal.
2. He, in case of receipt in writing of a copyright holder's application for violation of intellectual rights with indication of the website’s page and / or network address on the Internet on which such material is posted, took necessary and sufficient measures to stop the violation of intellectual property rights in a timely manner. A list of necessary and sufficient measures and the procedure for their implementation may be established by law.
As in life
But in life everything is as usual. Below we will tell about several trials, about which you probably heard something.
1. The case of Mail.ru against Classic Partner LLC
Classic Partner LLC filed a claim to Mail.ru for the recovery of compensation for violation of exclusive rights, that is, for placing audio recordings in My World.
The court refused to claim, finding that Mail.ru, which is just an informational mediator, is not guilty of anything.
Moreover, our court the most humane court in the world made the following conclusions:
Conclusion No. 1. According to the law, the Mail.ru website is not obliged to monitor the information that users transmit or store using the website services, as well as to actively search for facts or consequences indicating the illegal activities of users.
That is, Mail.ru is not obliged to conduct a preliminary or subsequent moderation of materials posted by their users.
Conclusion No. 2. The use of any specific technical means or solutions in one form or another is mandatory for carrying out preliminary or subsequent moderation of user content by law.
And no special programs to use for moderation by law is not required.
Conclusion number 3. The site has shown sufficient caution. The Site creates a situation in which its use by users is possible:
• only when accepting a user agreement expressly prohibiting the blah blah blah ...
• the establishment of additional warnings in the commission of those or other blah blah blah ...
• in conjunction with other applicable measures regarding the use of the Site in ways that violate the rights of third parties, including copyright and related rights ... and so on.
So, Mail.ru did everything they could, and the law does not provide for any additional measures.
2. The case against "in contact"
Oh, oh, oh, well, you can talk about it forever! How many of them were written, how many cases were considered in the courts ... We will tell only about two of them.
In the first similar case (see Case Resolution No. 03-12782 / 2013 dated March 6, 2014, 7th AAC), the social network VKontakte was prosecuted for illegal posting of information by the user, since
“... The posting of information that the user distributed, identifying himself as“ Konstantin Teterin ”on the respondent’s website, refers to publications in the media. And LLC V Kontakte is the owner of the site. ”
The site owner is, as a rule, the administrator of the corresponding domain and initiates its registration.
The materials of the case state that the one who posted this information was not found, therefore the one who is responsible for the resource itself (the founder of this resource or its edition) must be extreme.
This means that the domain owner is to blame, because he creates the technical conditions for the visitors of his Internet resource. Consequently, the actual use of the site’s resources is impossible without the participation of the domain administrator in one form or another, who is the person who created the appropriate technical conditions for visitors to his Internet resource
This year VK had a few more similar cases. In one of them, denying the claim against VK, the court stated:
“The obligation to him as the owner of the site on which an unidentified person posted the disputed information could only arise on the basis of a court decision that entered into force, which recognized the relevant information as defamatory of ZUT’s business reputation and not true, but not the request of LLC “ZUT”, declared to LLC “V Kontakte” as an information broker with the reference to the fact that the latter have not developed an effective user registration mechanism, under which x persons could be reliably identified "(Resolution on the case number A56-75152 / 2014 from 06.26.2015. 13th AAS).
In other words, the court decided that “In Contact” is obliged to delete any content only by a court decision, and not at the request of the humiliated and insulted. Therefore, at first it is better to try to negotiate with the one who filled this or that, but you can immediately go to court, of course, why pull something.
3. The case of Ralyanova against LLC TD Tula Chains Plant
First, a few words about the heroes of this case (see Decision on Case No. 68-1238 / 2014 of 12.08.2014. AC of the Tula Region).
Mr. Ralyanov is the founder and CEO of Tula Chain Chain OJSC. At the same time, this OJSC itself violates the exclusive rights to the trademark, the copyright holder of which is TD Tula Plant of Chains LLC.
They violate not only by placing the trademark on the site, but also by accepting applications from potential buyers of products on this site.
The site administrator was an individual - Mr. Ralyanov.
The court decided that Ralyanov, as the owner of the domain and his administrator, responds to the features of the information intermediary and is responsible to the plaintiff.
At the same time, the court made a logical conclusion: Ralyanov could not but know that the site, the administrator of which he is, uses information that violates the rights of TD Tula Chains Plant LLC. In connection with which such a conclusion? The fact is that the name of the administrator of the domain name of the site coincides with the name of one of the founders of OAO Tula Plant of Tsepey, moreover, in the extract from the Unified State Register of Companies, founder and general director of OAO Tula Plant of Chains, registered as a legal entity, you will not believe, Ralyanov Leonid Aleksandrovich. It’s clear that personally he could not post anything on the site, but nothing could have appeared on the site even without his weighty word.
4. The case of IP Kuvshinova versus Internet-Hosting LLC
In this case (see Resolution No. A40-169281 / 2013 dated September 26, 2014. 9th AAC), the court held not only the site owner, but also the hosting provider responsible.
The court found that
“... upon receipt of the Claimant’s claim, Internet-Hosting LLC was obliged to immediately remove the photos from the site or block access to the site. However, these actions, LLC “Internet Hosting” did not take. So, the requirements of paragraph 3 of Art. 1253.1 of the Civil Code of the Russian Federation, according to which the information intermediary, providing the possibility of placing the material in the information and telecommunications network, is not responsible for intellectual property infringement resulting from the placement of material in the information and telecommunications network by a third party or at his instruction, while simultaneously observing the following intermediary conditions: he did not know and should not have known that the use of relevant results of intellectual activity or means ndividualizatsii illegally. "
That is, the hosting provider had to close access to the offending site, because it was informed that this site contains information that violates the law or the rights of a third party.
At the same time, in another case, the court made the opposite conclusion:
“... Based on the meaning of art. 401, 1248, 1252, 1515 of the Civil Code of the Russian Federation, the court considers that until a court or other competent authority establishes a violation of the exclusive rights of the copyright holder by the site administrator, the requirements for the provider as an information intermediary cannot be made because the provider is not entitled to establish the culpable behavior of the site administrator, the unlawfulness of his behavior, the ownership of exclusive rights ". (Decision on case No. 40-120760 / 2013 dated July 22, 2014. Moscow AU.)
Immediately the court says that the hosting provider (information intermediary) cannot make value judgments about the guilt or innocence, legality or illegality of the information posted on a particular site, so all such issues must be resolved through the court.
Your affairs are wonderful ... Eh! If you have already encountered a similar problem, then, most likely, the hosting provider responded to you as in written by what the second court ruled. Now you know why they say that and not otherwise.
Implications for Informational Intermediaries
Based on judicial practice, it turns out that in some cases the information mediator will be responsible even in cases when the information itself does not post.
What to do?!
- Place on the sites an offer agreement (user agreement), in which special attention is paid to the duties and responsibilities of users for violation of the exclusive rights of third parties.
- In case of receipt of third-party claims about violation of rights by the site content, immediately respond to the request and try to eliminate the violation as much as possible. Be sure to send a motivated written response (and not just to explain on the phone that, they say, “Oops!”).
- Consider the feasibility of registering domain names for individuals. Maybe in your case it is better to register a domain for the company.
We wish you success and your business.
Be careful when posting information on sites!
Source: https://habr.com/ru/post/295638/
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