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German railway company sues Dutch websites over protest instructions

28 March 2012

Netherlands: Judge orders Indymedia to remove internet links
- German railway company sues Dutch websites over protest instructions

Update 24th June 2002

On 20 June 2002, Indymedia NL was ordered by a Dutch court to remove links leading to "mirrors" of web pages containing articles from the German magazine Radikal (see below) and faces fines of 5,000 euros per day if it does not comply. The Judge ruled that, like the editors of a newspaper, Indymedia is in principle responsible for any content that has been published with its help, even if the links are 'indirect' (ie. requiring several "clicks" to reach the Radikal mirrors) or were added to the website by visitors (Indymedia is structured so that anyone can put news stories and articles onto its websites).

In a press release the organisation said:

"Indymedia NL regrets the facts that the judge in the verdict does not elaborate on which kinds of links are permissible and which are not. This ruling will therefore have severe consequences for every person or organisation that has placed links on the Internet".

Full text of: Press release

Story filed 2 May 2002
On 15 April the Dutch internet-provider XS4ALL (http://www.xs4all.nl/) lost a legal case brought by Deutsche Bahn AG, the German national railway company, and was forced to remove web pages carrying articles from the now-defunct German magazine Radikal that contained instructions for protestors on how to obstruct the heavily criticised transport of radioactive material on Germany's railways.

Following a ban in Germany on publication of the articles - written in 1996 - the authorities then summoned German Internet Service Providers (ISPs), ordering them to make the homepage of a site hosted by XS4ALL that also published Radikal (http://www.xs4all.nl/~tank/radikal/) unavailable to their subscribers. The orders were lifted twice, when it became clear that they were ineffective and unworkable.

Neither the Dutch nor German authorities had ever ordered XS4ALL to remove the material, nor was publication of the articles prohibited in the Netherlands. Then, on 8 April 2002, lawyers from Deutsche Bahn ordered XS4ALL to remove the pages from its servers, or face legal action. XS4ALL has long had a procedure in place to deal with complaints about allegedly illegal or libellous material, and subsequently requested Deutsche Bahn to substantiate how the material was a breach of Dutch law. The railway company responded by initiating summary proceedings against XS4ALL in the Dutch courts, based on the EC "E-commerce" Directive of 8 June 2000.

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.

Indymedia NL takes up cause

Following the removal of the Radikal articles from XS4ALL's website, 'mirrors' (reproductions of the pages) sprang up on servers around the world. Indymedia NL, the Dutch branch of the worldwide 'alternative' media collective, then produced pages containing links to the mirrors.

On 23 April, Indymedia NL received a letter from Deutsche Bahn's lawyers demanding the removal of the offending pages. Indymedia is refusing to do so and now faces the prospect of more legal action. In a press release, they state three reasons for contesting the orders:

"Firstly the links in question do not directly lead to the disputed articles, but to mirrors in which the articles are contained. The articles therefore are at least three "clicks" away (from Indymedia to the mirror and from the mirror to the content page of the Radikal editions and from there to the articles). Complying with this request would mean jeopardizing the fundaments of the internet, since links are the essence of this medium.

Secondly, Indymedia NL is part of a worldwide independent news network, entirely produced by volunteers. Using the open publishing system, anyone can freely publish his or her news in the form of text, audio, video or photos. Principally Indymedia.nl does not want to censor or prevent people from placing links to news sources. We believe that everyone has the right to place links, notwithstanding the content available through these links.

Thirdly, Indymedia NL thinks that conforming to the demand would jeopardize the national and international freedom of the press, which is the basis of every democratic system. The possibility for censorship of hyperlinks in this way would have severe negative consequences for relevant provision of information in all layers of society (media, education, etc). Indymedia NL therefore calls for support in this very fundamental issue. Indymedia stresses that the issue is about references to freely available pages which are outside of Indymedia´s responsibility"

For information on the Indymedia case, see: http://www.indymedia.nl
The disputed webpage is at: http://www.indymedia.nl/2002/04/3281.shtml

Indymedia would welcome any legal advice on the matter.

For background on the Radikal and XS4ALL cases, see: http://www.xs4all.nl/~tank/radikal/

Sources: XS4ALL press release, 14.4.02; Indymedia NL press release, 25.4.02.

Story filed 2 May 2002