Hosting. Pressure. To succumb or not to succumb?


It was 17 yesterday. November and we celebrated almost a quarter of a century since the “Velvet Revolution”. What makes us uncomfortable? Read a reflection on the current problems of the, so far, hopefully free Internet.

A “long” time ago, our (un)corrupt legislators put a provision in the law that makes no sense at all (in practical life). Yes, they may have been thinking about their parliamentary benefits when they passed it, but they certainly weren’t thinking about what they were passing…

The provision is vague, meaningless and imprecise. A provision that brings many, many uncertainties, problems and risks.

What’s going on?

In our legal system, there is Act No. 480/2004 Coll., on certain information society services, which contains a provision that applies to virtually every hosting company. Section 5 states the liability of the service provider for the content of information if the provider becomes aware of the illegality of the content of the stored information.

§ 5

Responsibility of the service provider for storing the content of information provided by the user
(1) The provider of a service consisting of the storage of information provided by a user shall be responsible for the content of the information stored at the request of the user only
(a) if he or she could have known, in view of the subject matter of his or her activity and the circumstances and nature of the case, that the content of the information stored or the user’s actions are unlawful; or
(b) if it has become aware of the unlawful nature of the content of the information stored or of the unlawful conduct of the user and has not promptly taken all steps that may be required of it to remove or make unavailable such information.
(2) The service provider referred to in paragraph 1 shall always be liable for the content of the stored information where it exercises, directly or indirectly, a decisive influence on the user’s activities.

§ 6
The service providers referred to in §§ 3 to 5 are not obliged to
(a) supervise the content of the information transmitted or stored by them,
(b) actively seek facts and circumstances indicating the unlawful content of the information.

The provision of the law is confusing because it considers hosting to be a provider(a service provider is any natural or legal person that provides any of the services of the information society), while it should rather be purely a service operator, i.e., for example, the owner of the website or the one who creates (and adds) content to the website.

Why does it bother us?

In our view, this is about internet freedom and freedom of content on the internet.

Recently, this is a very popular provision, which is used not only by various injured persons, but also by their lawyers and, more recently, by the Police of the Czech Republic. What’s going on?

The above provision is “threatened” by people or companies (or their lawyers) who feel aggrieved by the content of a website hosted by us.

They are demanding that the site be shut down, the content deleted, the domain shut down… …citing only certain evidence and the aforementioned law. They will not use other means – from a criminal complaint, to an interim measure in court, to a lawsuit in court… and they don’t fight the site owner, they go straight to hosting. They take it to mean that hosting is unambiguous and unquestionable and easy to trace. Moreover, they believe that the hosting will get stuck and will want to avoid any problems.

We do not succumb to this pressure because we do not want to “fit” into the role of a judge and we do not want to judge the legality or illegality of the content of websites hosted by us… We protect our clients, but we add a lot of trouble. On the one hand, we enter into the risk of a possible liability for damages in the future, and on the other hand, we expose ourselves to the risk of prosecution…

Example one – TV pressure

A leading Czech TV company sought to stop one of our customer’s websites from sharing links to their programmes that someone else had distributed illegally on another website. Despite the initial pressure (via emails), their pressure passed only after long (indeed many hours) conference calls full of pressure and threats in the sense that if we don’t stop the website, we will have to pay for all the copyright damages caused and also that those who refuse will have complications with the Police.

We didn’t shut down the website. Not that we didn’t want to, but we didn’t succumb to the arrogant behavior of the directors and lawyers who defend themselves by saying that they are “the TV” and that we have to listen to them because they are right… We challenged them to prove the illegality of their actions, to prove the specific references that bothered them. We also wanted to produce contracts that would prove the contractual relationship between TV and the author of the work… We didn’t get any of that. Instead, a criminal complaint was filed against our statutory representative, which is being dealt with by the criminal police…

Note: We do not condone copyright infringement and theft of copyrighted works via the Internet. We are only addressing whether and how and on what basis it is possible to disable a particular site.

Example two – pressure from a bank subsidiary

One of our customers resolves his anger with a leasing company (a subsidiary of a bank) by describing his story on the internet.

The leasing company contacted us to have the content removed, they stopped the domain, and eventually they are seeking a transfer to them in court because the domain is similar to their trademark.

First it was communication through registered letters, e-mails. It continued with an application for an interim order in court. Eventually, it ended up in a lawsuit.

The pressure was so strong that we finally invited a leading Czech law firm to cooperate with us, which now represents us. Yes, we pay tens of thousands of crowns to lawyers for defending our customer who pays us 25 crowns a month for web hosting…

In the meantime, this is being dealt with on several fronts – lawyers, domain arbitration proceedings, court proceedings…

We do not judge whether the customer is right or wrong. We do not assess the content. We do not judge whether the information is true or false (and that would be defamation). We are simply saying that no one has yet proved to us the illegality of our client’s actions and so we are defending him.

Yes, the client uses a word identical or similar to the trademark in the domain name, but on the other hand, the trademark protects certain “classes” of goods or services, but our client does not interfere with that and clearly does not infringe such rights.

Note: We do not sympathize with the client in fighting the bank or the bank’s subsidiary. Nor do we address the truth or falsity (and thus the validity) of our client’s claims. We only address whether and how to disable a particular site.

Example three – pressure from the Police of the Czech Republic

The police use different methods. So far, we have felt that fairly correct. However, we now have the feeling that someone has gone mad and so a police state is probably imminent.

From time to time, the Police of the Czech Republic want some information to which they are not entitled or their request is not sufficiently justified. This is usually dealt with without any problems and the officers either drop their claims or simply complete the application.

In recent weeks, however, we have encountered something new. Some “smart head” sent out a sample request within the police to shut down the domain, the website and make the content inaccessible. There would be nothing wrong with that if the request had a head and a heel and did not contradict the law, or rather the Constitution and the Charter of Fundamental Rights and Freedoms.

The Police of the Czech Republic use this model application in connection with “raids” on various shops and e-shops that are involved in the sale of addictive substances or the distribution of instructions on how to obtain such substances or how to grow certain plants (so-called growshops). In its request, the Police of the Czech Republic draws attention to the fact that there is content on a certain web address that is in violation of the law, and the police subsequently order us to shut down the website and remove the content (with reference to the paragraphs listed in the introduction to this article). If we do not do so, we are jointly liable, not only in terms of compensation for damages, but also in terms of criminal law.

The police somehow do not realize that there are no criminal proceedings pending in the matter and therefore no decision on the possible (il)legality of the content posted on the website. Somehow they don’t get that there is such a thing as the presumption of innocence and just some view of the police commissioner or the police board (or whatever their name is) doesn’t change that…

Yes, we stood up and refused to shut down the sites on this point as well. There were several requests and all of them, of course, were made officially through the data box. We refused to comply (again, officially via data mailbox). We may play with fire, we may be sued for damages, we may face criminal prosecution, but we are not subject to pressure. Just for the record, perhaps we should add that we are probably the only provider that has done this now. When we made several inquiries with other companies, we were told that they complied (after all, it is an official request and they need to follow the law). We believe that we are doing the right thing.

Note: We do not support the distribution of narcotic drugs and psychotropic substances. I’m sure it’s not. We don’t use them, and we’ve never even tried. It’s all about following the law.

Is there any point in continuing?

We could find many, many more examples of these cases where it is often similar and our approach is similar…

Should we succumb or not?

What do you think? Should we succumb or not? So far, we’re defending ourselves. It costs us a lot of effort and complications and money and time. We don’t want to give in because we are now defending our customers. We do not want to defend those who do mischief and commit illegal activities on our hosting, but on the contrary we want to defend the decent ones. Once we succumb, we can easily shut down a customer who has done nothing. We don’t want to be like a competing company that shut down a customer’s website based on a letter from the city hall…

So hopefully I will be able to write similarly free reflections in the future and there will be no need for customers to send muffins to my cell and bake files into the muffins

Write us your opinion in the discussion. Thank you in advance for your contributions.

The author of the article is Josef Grill, Chairman of the Board of Directors of the company.