Holding ISPS Liable for Online Defamations: The Element of 'Actual Knowledge' in the Spanish Supreme Court Decisions of December 9th 2009 and May 18th 2010

20 Pages Posted: 12 Jan 2011

See all articles by Antoni Rubi-Puig

Antoni Rubi-Puig

Universitat Pompeu Fabra - Department of Law

Date Written: October 1, 2010

Abstract

“Actual knowledge” of the illegal or tortious information stored by an Information Service Provider (ISP) stands as the main element to establish liability for online defamations. The Spanish Supreme Court has recently delivered two decisions – December 9th 2009 (“putasgae”) and May 18th 2010 (“quejasonline”) - in which has analyzed this element and held that it can be proved by means of a victim’s notification or on res ipsa loquitur grounds.

However, the Court, as the cases brought before it did not require so, missed the opportunity to discuss the limits to the aforementioned mechanisms in proving “actual knowledge”. This article draws some of these limits and argues that victims of online defamations have a primary duty of care in reasonably identifying the presumably illegal or tortious information stored by the ISP. Establishing duties of care of both ISPs and victims reduces the risks that an absolute liability system would cast upon technological innovation and Internet’s architecture.

Note: Downloadable document is in Spanish.

Keywords: Online Defamation, Civil Liability, ISPs, Actual Knowledge

Suggested Citation

Rubi-Puig, Antoni, Holding ISPS Liable for Online Defamations: The Element of 'Actual Knowledge' in the Spanish Supreme Court Decisions of December 9th 2009 and May 18th 2010 (October 1, 2010). InDret, Vol. 4, 2010, Available at SSRN: https://ssrn.com/abstract=1738243

Antoni Rubi-Puig (Contact Author)

Universitat Pompeu Fabra - Department of Law ( email )

Ramon Trias Fargas 25-27
Barcelona, 08005
Spain

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