NL supreme court ruling on internet anonymity

The Supreme Court of the Netherlands ruled on 25 November 2005 in a landmark case against the freedom of internet users to express their opinion anonymously. The Supreme Court upheld a previous court verdict in which internetportal Lycos was forced to hand over the personal data of one of its subscribers to the Dutch stamp trader Pessers.

Mr Pessers trades in postage stamps on the auction portal eBay and was accused of fraud by a Lycos subscriber, who published Mr Pesser’s name on his website. Subsequently Pessers demanded the personal data from the subscriber in order to sue for damages. But Lycos refused and was taken to court. After the initial verdict, Lycos did hand over the data, but only to find out the address data were false. Pessers started another procedure, to force Lycos to find other ways to retrieve the correct information, but that demand was declined.

Although the Court acknowledges that the content on the website was not ‘apparently unlawful’, the Court ruled that Lycos was required to hand over the data. In the view of the Court Pessers had made it ‘sufficiently plausible’ that the website ‘could be’ unlawful.

The outcome of the Supreme Court verdict is that ISPs in the Netherlands will have to evaluate two questions regarding websites when receiving complaints. The ISPs will have to take websites off-line after a notice and takedown request when that website is ‘apparently unlawful’. This is a direct result of the e-commerce directive (2000/31/EC). The Court has now added a second question. If the website ‘could be’ unlawful then the ISP will have to hand over the personal data of the website owner. The music industry in the Netherlands has taken a great interest in the case Lycos/Pessers. The Dutch anti-piracy organisation Brein even paid for Pessers legal costs hoping that the ruling would enable them to get the personal data of peer-to-peer users through their access providers.

As a result of this ruling, ISPs in the Netherlands will have to evaluate a complex series of questions. Although Lycos decided to fight the legal battle to the very end, it is expected that most ISPs will not follow this example. It could become quite simple in the Netherlands to gain someone’s personal data through an ISP if all it takes is to convince the ISP that the website involved ‘could be’ unlawful.

There is some light at the end of the tunnel as the Court stresses in its verdict that the conclusion only applies to the specific conflict between Lycos and Pessers and does not constitute a general rule.

Supreme Court: Lycos / Pessers (in Dutch only, 25.11.2005)
http://www.rechtspraak.nl/ljn.asp?ljn=AU4019