Indymedia.nl loses anarchist hyperlinks case
Deutsche Bahn railroads Dutch law
In April this year, Deutsche Bahn sued Google over links to a German anarchist website which showed how to sabotage a railway.
It wasn't Google's fight: the world's favourite search engine firm promptly removed the offending links to the website of Radikal, the aforementioned anarchists.
Deutsche Bahn had already gone to court to bar German web ISPs from linking to the sabotage articles. When this didn't work, the company went to the Netherlands and sued the Dutch ISP XS4ALL, host of the Radikal pieces - under the EC Ecommerce Directive of 8 June 2000, Statewatch reports.
"The Directive defines the liability of ISPs in a very precise way. The implementation deadline was 17 January 2002, as this date had passed a Dutch judge had to rule on the case. Proceedings were initiated on the 10 April and the case was heard on the 15 April, giving XS4ALL little time to prepare. The judge ruled that the content, having been banned in Germany was indeed illegal under the terms of the Directive and XS4ALL had to remove the pages."
So now the Dutch arm of Indymedia, the radical newsgathering collective, enters the fray, producing a page containing links to mirror sites which have popped up all over the Web. On 23 April, indymedia received notice from Deutsche Bahn demanding the removal of the pages.
Indymedia.nl refused. The case went to the Dutch courts. And on 20 June, the news organisation duly lost its argument that by linking to mirrors, it was not linking directly to illegal material (at least three clicks away) and therefore it broke no Dutch law.
Our knowledge of Dutch law is, err, zero. We also understand Deutsche Bahn's desire to expunge a primer teaching people to blow up its railroads. But this action should have been scrutinised properly, instead of by the proxy of EC consumer law.
The EC Ecommerce Directive has been much criticised on the grounds that consumer rights enshrined in its philosophy are unfair to etailers and ISPs and may retard online trade. But who spotted its potential as a backdoor cross-border censorship tool?
Possibly not even the EC. In December 2000, the Commission wrote:
The (ECommerce) Directive clarifies that the Internal Market principle of mutual recognition of national laws and the principle of the country of origin must be applied to Information Society services. This will ensure that such services provided from another Member State are not restricted.
The Indymedia.nl ruling seems to have exactly the opposite effect to that contained in the above sentiment. ®
Indymedia.nl page with links (now removed)
Indymedia press release conceding defeat
Reg article on Deutsche Bahn and Google
EC Ecommerce directive (PDF)
EC welcomes Electronic Commerce Directive