Marketing website copyright infringement claim

[helpmeplease]

Good evening

Does anyone know if a website owner is liable for copyright infringement by one of its users? A user being someone who registers for free and posts an advert for their business?

Thanks

[AndyJ]

Hi helpmeplease,

Provided that no-one connected with running the site takes active steps to moderate, edit or approve postings prior to them going up. then the site owner is not liable for any alleged infringement caused by a third party, provided that, once notified of the alleged infringing material, the owner acts expeditiously to remove the disputed item.

There are two separate but similar legal mechanisms for this. For a server or website owner based in the USA, the DMCA (specifically the Online Copyright Infringement Liability Limitation Act (OCILLA) rules apply.

Within the EU, articles 14-15 of the EU eCommerce Directive apply. This EU legislation was brought into UK law by the Electronic Commerce (EU Directive) Regulations 2002 (SI 2002/2013).

In both cases a service provider is not, currently, required to actvely monitor what is posted etc by third party users of their facilities. This may change within the EU once the new EU Directive on the digital single market comes into force, as the draft legislation currently contains a requirement for service providers to actively screen all content for infringing material prior to allowing postings to be made. However, even if this provision remains in its current form, the chances are that the UK will no longer be a member of the EU at the time the directive is finally published, so it may not need to implement the DSM Directive in domestic law.

[helpmeplease]

Thank you so much for this. I'll go back to them and confirm this.

We have no control and do not moderate adverts. We only remove if they are reported to us.

Thank you

[helpmeplease]

Ok so I went back to the company in question and this is what they responded with.

Unfortunately as the business that owns the domain, you are responsible to ensure that you have policies in place to be certain that your website features only content that is included with the permission of the copyright owner (usually under license). This is a commercial website and whether or not this particular advert was paid for or not is not relevant. All images featured on the website are ultimately the responsibility of the website owner. We frequently have cases where a web design company may have used an image but from \ legal standpoint, the website owner is responsible.

What steps should I take to get them off my back?

[AndyJ]

Hi again,

Their reply doesn't make much sense, and is legally inaccurate. The fact that you own your domain [name] is totally irrelevant. You have seen what the EU Directive says on the matter. Assuming that you took down the disputed material expeditiously when first notified, you have complied with the law and are not liable for the actions of any third party. Any dispute they have over infringement is with the person/company which posted the advert in the first place. There is no legal requirement for you to have terms or policies in place to prevent this sort of activity (article 15 of the Directive specifically says there is no obligation to monitor the traffic using your site), and even if you did have terms or policies on this aspect, since you don't pre-moderate postings, any poster could just ignore such policies if they chose to.
You don't mention who is making this complaint, but if it is a picture agency like Getty, then they can be very persistent even in the face over an obvious defence such as yours. Alternatively, there are copyright claims management companies who undertake to chase up this sort of complaint on behalf on their clients, which in my experience, have a very poor grasp of the law and in fact, nine times out of ten, are not actually authorised in law to bring an infringement claim (see this thread about one of these companies which purported to be a debt collection agency, even though it was not licensed by the FCA).
I am tempted to say you should call their bluff by not actively engaging with them any further. However that might only encourage them and you would still be hassled by more correspondence and threats, so you may have to get your own solicitor to deal with the matter. But as this will be costly, I hesitate to advise this at this stage. If you do decide to use a solicitor, choose one which specialises in intellectual property law. You can find the nearest specialist firm to you by using the Law Society find-a-solicitor website. If you are running a business unfortunately you can't get help from Citzens Advice, although they do offer some helpful advice on the subject.

[helpmeplease]

Andy,

Thank you for such a detailed and reassuring response. I did try to make sense of the legislation you sent to me and I'm very appreciative of you doing so. The material was taken down immediately because the business who posted the advert contacted me to have it removed saying they didn't create it themselves (no mention of copyright at that time). It was later on that I had contact from this company who I won't name, telling me I am liable for copyright infringement.

I will tell the company that I am not liable and reference the EU Directive to see where that gets me. If at that point they are still threatening I'll ignore them as I don't really want to get a solicitor involved where the case is so obviously in my favour.

Thanks