A recent Dutch court decision declared that XS Networks was complicit in copyright infringement after it failed to take down the website for “SumoTorrent” which was hosted on their servers. XS Networks had already been notified that the content on this site was illegal and therefore knew the risks of leaving it in place. This meant that it was liable for the damages caused by the sharing of the illegal content as if it were its own doing.
The action in this regard was taken by an organisation by the name of “Brein” – a Dutch acronym which translates to Protection Rights Entertainment Industry Netherlands. This group spent years tirelessly seeking out the persons responsible for this website which was initially hosted in the Netherlands.
Although at the time the judgement was passed down by the courts XS Networks was no longer in service, the court revived the company to pay out the damages. Regardless, this is unlikely to actually affect the site which moved all data to the Ukraine a while ago.
Tim Kluik, the head of Brein has stated that they take down an average of 600 websites which give access to illegal content in any given year. He has applauded the fact that the court has finally set a precedent making hosts liable for housing illegal content on their servers. This is the first time the “Mere Conduit” principle emanating from the E-commerce directive (2000/31/EC) has been applied and tested by the court of a Member State. This proves, at least in the Netherlands, that the law bears the appropriate efficacy.
All that remains to leave no shadow of doubt in the principle would be for the European Court of Justice to echo the principle, though this would require either that a case be brought before the court or that the court of a Member State requests a preliminary reference from the ECJ.