The actions of Hammy Media, operator of xHamster.com, do not fall within the safe harbour of the hosting exception of Section 6:196c of the Dutch Civil Code (DCC). Hammy Media does not play a (sufficiently) neutral role in publication the visual material. On appeal, the Amsterdam Court of Appeal (hereinafter: the Court of Appeal) confirmed that Hammy Media must remove all the visual material for which no permission to publish was obtained from the persons concerned. This ruling follows summary proceedings in which it was ruled earlier that Hammy Media must be able to prove that persons who appear recognisably in the picture on amateur material have given their permission for publication.
Hammy Media operates the website xHamster.com, where members can upload pornographic images. The Dutch subdomain is part of this. Stichting Offlimits (formerly: Expertise Bureau Online Child Abuse), in short, is committed to preventing and combating (sexually) transgressive behaviour.
Stichting Offlimits (hereinafter Offlimits) commenced a class action against Hammy Media in 2023, in summary proceedings claiming an injunction against the publication of unlawful visual material in which persons are visible, from which consent has not been obtained, citing an earlier court ruling in this regard. This judgment (ECLI:NL:RBAMS:2022:557) ruled that it is unlawful to publish visual material that:
- Is covertly filmed and shows persons recognisably undressed (in whole or in part) in places where they consider themselves unobserved; or
- Is not professionally made and shows persons recognisably performing sexual acts in private, unless the operator is ascertained that those persons consent to the publication of those images.
It does not matter here whether a publication, such as a website, is mainly focused on the Netherlands or has a wider reach alongside it.
Hosting exception
Under Section 6:196c (4) DCC, hosting service providers are exempted from liability if:
- The provider does not know or could not reasonably have known about the activity or information of an unlawful nature; and
- As soon as he does or reasonably should know, promptly removes the information or makes access to it impossible.
It follows from established case law (CJEU YouTube & Cyando) that recourse to the hosting exception is only possible if the actions constitute mere conduit, meaning that there are merely technical, automatic and passive actions. The operator should have a neutral role, which means concretely that the operator has no knowledge or control over the content it stores.
Hammy Media cannot invoke this exception because it does not assume a neutral role. Uploaded footage is reviewed by a content moderation team for prohibited content and whether all persons appearing therein have given their consent. The fact that third parties create the content does not alter the fact that Hammy Media reviews the content. As a result, Hammy Media’s operations go beyond mere conduit thus go beyond taking technical measures to check offered visual material for illegal content.
No paradoxical good-Samaritan
The argument, that providers are ‘punished’ for being proactive, does not hold (also) in this case. Hammy Media essentially argues that it is worse off by exercising control over the content offered. The argument that without moderation all the visual material offered to Hammy Media would be allowed to be published without further ado does not stand up here.
The case concerns pornographic visual material, involving processing of (special) personal data. Such data processing is not permissible outright under Article 9 GDPR. The exceptions the GDPR provides for this include explicit consent. It is the data controller (Hammy Media), which has to prove this. In all cases where it cannot do so, the processing is not permitted and is therefore illegal content.
WAMCA aspects
Finally, the Court of Appeal addresses the question whether Offlimits meets the Settlement of Mass Damage in Collective Action (in Dutch: WAMCA) admissibility requirements of Section 3:305a DCC. Because Offlimits stands up for an idealistic purpose and has no financial interest in doing so, Offlimits does not have to meet the requirements of Section 3:305a (2) and (5). Hammy Media argued that Offlimits’ statutes would not sufficiently show that Offlimits promotes the interests it is defending in these proceedings. In addition, Hammy Media argues that the claims have an insufficiently close connection to the Dutch legal sphere.
The Court of Appeal finds that the (amended) articles of the statutes dated 15 December 2022 and 7 June 2023 are relevant to these proceedings and ignores any reliance by Hammy Media on previous versions of these. These state that the purpose of Offlimits is “to prevent and combat online transgressive behaviour and abuse in general and to prevent and combat online sexual (child) abuse and sexual (child) exploitation in particular. The Court of Appeal finds that the interests for which Offlimits is defending in these proceedings fit within this. This follows, inter alia, from Offlimits’ activities in the context of the Helpwanted helpline, which is part of Offlimits’ organisation. Helpwanted supports and advises victims of online transgressive behaviour such as persons who unintentionally appear in pornographic images made public on the internet.
Most of the persons for whom Offlimits is acting in the proceedings have their habitual residence in the Netherlands. In addition, the events to which the claims relate also took place in the Netherlands. The visual material made public is available in the Netherlands free of charge, the website operates under a Dutch subdomain and the material is aimed at Dutch audiences. Thus, Dutch titles are available, there is footage in which Dutch is spoken and the title shows that the people shown are Dutch. Also, victims who ask Helpwanted for help are largely resident in the Netherlands. To avoid claims that could be awarded that do not have a sufficiently close connection to the Dutch legal sphere, Offlimits has formulated the ban in such a way that for persons residing in the Netherlands, a worldwide ban is requested, and for persons not residing in the Netherlands, the ban is limited to the Netherlands.
The Court of Appeal also briefly considered that the consultation required by Article 3:305a(3)(c) DCC was not required to produce a result. Indeed, it would not follow from this that there was insufficient effort to avert proceedings.
Conclusion
The Court of Appeal reaffirms that the hosting exception is exactly that: an exception. As soon as a provider takes on a (more) active role within the process, the safe harbour lapses. The judgment shows that this is especially at play when a provider assesses and monitors content prior to publishing it online. A complicating factor within this framework is content that also entails processing of (special) personal data. In that context, the relevant provisions of the GDPR with which a data controller must comply must also be considered. For providers, this means navigating between actively acting and taking a sufficiently neutral role.
Finally, the Court of Appeal briefly discusses some WAMCA aspects, including the required close connection to the Dutch legal sphere. In proceedings under Article 3:305a DCC, various aspects of the way content are offered can be taken into account, such as the language of the offer and a Dutch (sub)domain. In addition, the Court of Appeal considered that a foundation or association does not have to be successful in the consultation of 3:305(3)(c) DCC to have sufficiently tried to avert proceedings.
SOLV Attorneys at Law has extensive experience in assisting online platforms, advising on privacy law issues and has conducted several WAMCA proceedings. If you have any questions or would like to seek advice as a result of this blog, please feel free to contact us.
