This article addresses the issue of discussion forum operators’ liability for user contributions, which is quite frequently discussed in practice. It also briefly deals with legal questions related to users’ requests for the removal of their contributions by discussion forum operators.
Discussion forum operators’ liability – as so-called liability of a service provider for storing content of information provided by a user – falls under the legal regulation of Act No. 480/2004 Coll., on Certain Information Society Services and on Amendments to Certain Acts (Act on Certain Information Society Services), as amended. The limitation of the service provider’s liability for storing content of information provided by a user under this Act was intended primarily in relation to the provision of hosting services; however, given the general formulation of the Act’s provisions, it is possible to extend them to the operation of discussion forums. The legal regulation modifying the provider’s liability should thus be applicable also to other types of services that consist “in storing information provided by a user”.
Section 5 of the Act on Certain Information Society Services provides that “a service provider whose service consists in storing information provided by a user shall be liable for the content of information stored at the user’s request only if a) having regard to the subject of its activity and the circumstances and nature of the case, it could have known that the content of the stored information or the user’s conduct is unlawful, or b) it has demonstrably learnt of the unlawful nature of the content of the stored information or of the user’s unlawful conduct and has not promptly taken all steps that may be required of it to remove or disable access to such information.”
The above provisions are supplemented by Section 6 of the cited Act: “service providers are not obliged to a) monitor the content of information transmitted or stored by them, b) actively seek facts and circumstances indicating unlawful content of information.” It follows from this that a discussion forum operator is not obliged to actively seek facts as to whether any of the contributions within the discussion is unlawful. However, if the operator “demonstrably learns” (most often on the basis of notification by the affected party) that a contribution in the forum is unlawful, it should remove it promptly, and in this context it is also possible to recall the general principle of not causing damage pursuant to Section 415 of the Civil Code (Act No. 40/1964 Coll., as amended). The limitation of the discussion forum operator’s liability naturally relates only to information stored by users. It is therefore advisable for the provider of these services to clearly distinguish what content on the website is content published by the operator and when it concerns user contributions.
It follows from the above provisions of the Act on Certain Information Society Services that, from the perspective of a discussion forum operator, the question of assessing the unlawfulness of content stored by a user plays a dominant role. This may naturally not always be simple in practice, both from a factual and legal perspective. On the other hand, it is necessary to take into account the fact that a discussion forum operator is in most cases a professional entrepreneur, and it is thus assumed that they will be able to properly assess the situation (or arrange for proper assessment). In more important cases or in cases where there is a risk of greater damage occurring, it is advisable to consult the case with a legal representative. This should be a legal representative who is liable to the client for damage arising in connection with the provision of legal services and is duly insured for the event of such damage occurring. Some operators then adopt the method of removing content (contributions) in the event of any request by a third party without assessing their unlawfulness.
The Czech legal regulation cited above implements European Communities legislation, specifically Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Electronic Commerce Directive”). For this reason, the provisions of the Act on Certain Information Society Services must be interpreted in a Euro-conforming manner, i.e. the provisions of the Act must be interpreted in accordance with the wording of the Directive in question.
Further interesting legal questions relate to users’ requests (to discussion forum operators) for the removal of contributions posted by those users. This occurs particularly in cases where the discussion becomes too heated and its content then, for example, affects the commercial interests of the contributor themselves. Unlike the information stated above, this does not therefore concern the issue of the operator’s liability to third parties whose rights a particular contribution in the discussion potentially affects, but rather the legal relationship between the discussion forum operator and its particular user.
It may be stated in advance that if the discussion forum operates on the basis of registration, it is advisable for the operator to expressly regulate this issue in the registration terms. If the forum does not operate exclusively on the basis of registration or if this issue is not addressed in the service’s contractual terms, it is necessary to proceed in accordance with generally binding legal regulations. In this context, from a theoretical and practical perspective, it is possible to distinguish situations where the user’s contribution is a copyright work and where it is not.
If a user’s contribution does not satisfy the statutory prerequisites for a copyright work, which in practice will probably be the case for the majority of discussion contributions (see below), consideration is usually given to the protection of documents of a personal nature within the meaning of Section 12 of the Civil Code. However, in relation to this question, it is appropriate to take into account that in the case of web discussion forums, the user knowingly publishes their views to a wider circle of persons, so by the very nature of the matter it cannot concern documents of a personal nature (such as letters, unpublished diary entries, etc.). The protection of the user’s personal rights under the Civil Code should therefore not be a legal reason for the removal of contributions by the operator. The above naturally does not affect the possibility of moderating the discussion forum by its operator, including the possibility of removing any contribution from the discussion.
If a user’s contribution were to satisfy the statutory conditions for the creation of copyright protection pursuant to Section 2(1) of the Copyright Act (Act No. 121/2000 Coll., as amended), the situation is different. Copyright protection is generally enjoyed by artistic works and scientific works. For the creation of protection for a literary work by copyright, a certain complexity and level of such work is therefore necessary. A suitable example of a subject that is not subject to copyright protection may be, for instance, a daily news item (Section 2(6) of the Copyright Act). This naturally does not exclude the protection of a daily news item on other grounds (unfair competition, etc.). From this it may also be inferred that contributions within discussion forums that will be subject to copyright protection will rather be in the minority; however, there will naturally also be opposite cases in practice.
If the author’s contribution may be regarded as a copyright work, it will depend on the specific technical solution of the discussion forum whether an informal licence agreement has been concluded (by implied conduct) between the discussion forum operator and the user regarding their contribution. The formal requirements for concluding a licence agreement were substantially reduced by an amendment to the Copyright Act, as Section 46(6) of the Copyright Act now provides that “having regard to the content of the proposal or to the practice established between the parties, or to custom, the person to whom the proposal is addressed may express consent to the proposal for concluding an agreement by performing a certain act without notifying the proposer, namely by acting in accordance with it, in particular by providing or accepting performance.” In this context, it may also be mentioned that this concerns a published work (contribution), so Section 54 of the Copyright Act, which allows the author to withdraw from a licence agreement due to a change in their convictions, cannot be applied. Moreover, the publication of the contribution logically occurs at the instigation and with the consent of the author (user).
In view of the above, we therefore take the view that generally binding legal regulations do not give rise to an obligation for discussion forum operators to remove a contribution posted by a user (at the request of such user). However, this does not affect the rights of other persons whose rights the contribution might potentially affect.
This text was translated from Czech to English using an AI translator.