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Spanish court fines ISP over illegal content

Fri 27th May 2011

A Spanish court has ruled that an internet service provider's (ISP) removal of content uploaded by its client (insulting comments and a degrading picture) was not actioned quickly enough for the ISP to be exempt from liability.

The plaintiff tried twice to contact the ISP about the unlawful content but was unable to reach them due to the ISP's 'WHOIS' information being out of date, and it failing to show on its website the minimum details required under the Spanish E-Commerce Law (e.g., contact address). The ISP eventually removed the content in question, but only after a case was filed in court and the complaint served on the ISP.

The ISP claimed that it should be exempt from liability due to it immediately removing the content once it was aware the complaint. They also alleged that they had only an "effective knowledge" of the illegality of the content in question and that it had removed the content without waiting for a court resolution declaring its illegality.

The Court rejected this and held that the "effective knowledge" of the illegality of content may be obtained not just by a court declating it illegal, but also by means of personal and professional judgement. The court held that the illegality of the content in this case was clear and patent and therefore a Court resolution was not necessary to declare its illegality. They also concluded that the ISP was liable because it lacked diligence in fulfilling its duty to cooperate with the removal of the illegal content, and awarded the claimant 6,000 in damages.

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