Effectiveness of the “Sinde Law” against websites hosted abroad and European Union law
In Salvador Ferrandis & Partners, we have come across a Judgment of April 26, 2016 of the Administrative Section of the National Court (JUR 2016/151887), which, despite having gone unnoticed, is of great relevance to the effects of the exercise by Section 2 of the Intellectual Property Commission (created by the so-called “Sinde Law”), hereinafter IPC, of its powers to order the closure of web pages by means of summary proceedings.
The facts of the case are as follows. In April 2015 the IPC sent a notification to an Internet service provider established in the Netherlands, based on Royal Decree 1889/2011, requesting the ISP to identify the individuals behind two websites hosted on its servers in which, allegedly, copyright-protected contents were offered to residents in Spain.
The request of identification of the individuals behind the site is accompanied by an Order of the Central Court of administrative litigation in which authorization is granted to make the said request insofar as: a) the application does not infringe any fundamental right; b) these providers are subject to Spanish law in accordance with art 4 LSSI (Law of Services of the Society of Information and Electronic Commerce).
The Dutch ISP appealed the decision on the grounds that the IPC, as an administrative body, cannot exercise its competence beyond national borders and because the procedure used to attain such goal is not suitable. As we are in the case of a restriction of a service provided by a ISP established in another Member State of the EEA, the request should have been made using the intra-Community cooperation procedure referred to in Article 8.3 LSSI. Contrary to the opinion of the court of appeal, the Dutch ISP claims that Art 4 LSSI does not apply when, as stated in the title of the provision, it refers to providers established in a State not belonging to the European Union or the European Economic Area “.
Surprisingly, the National Court dismisses the appeal because the magistrates understand that it is clear that the Dutch service provider offers its services to the Spanish market,
“(…) being therefore applicable, the provisions of the second paragraph of the transcribed provision [Art. 4.2 LSSI]. Thus, the provision in this paragraph includes both, providers established in countries that are not members of the European Union and those established in other member states, provided that they specifically address their services to the Spanish territory”.
Consequently, the appellant’s reason for appeal must be rejected, since the appellant company was subject, as it was, to the obligations set forth in the LSSI, the IPC had full jurisdiction, legally attributed, to address the information request Authorized judicially, regardless of the administrative procedure or means used to notify the request in the country where it has its registered office. “
In our opinion, the decision taken by the National Court is open to criticism for the following reasons.
Firstly, it disregards the main principle of administrative law according to which acts of public law have effects in the territory of the State to which the authority which has adopted them belongs. Outside that territory, the affected parties are not obliged to obey such acts and the sanctions that could be imposed by the administrative body (in this case up to 30,000 euros if they do not comply with the request) would not be enforceable in that foreign State. This principle is not applicable in those cases where a procedure of international cooperation is envisaged to enforce the act of public law in the foreign State. But the intra-Community cooperation procedure that the national court has decided not to apply is precisely the only procedure that exists in this area.
Secondly, the interpretation held does not make sense because the different treatment established by the LSSI for ISPs established in an EEA Member State, and ISPs established in non-member states is ignored. It should be remembered that such different treatment has its reason of being in that the former category of ISPs enjoys the freedom to provide services, while the latter do not.
Thirdly, the interpretation held may imply a breach of European Union law insofar as there is an obstacle to the free provision of services in Spain imposed to ISPs established in other Member States which amounts to a breach of the provision set forth in in Art. 3.4 and other related articles of Directive 2000/31, which establishes the intra-Community cooperation procedure.
In short, with this interpretation, the National Court has intended to facilitate the work of Section 2 of the IPC- since, without a doubt, the summary proceedings of the Sinde Law are much faster than the procedure of intra-community cooperation – but for this it has incurred in evident illegality. It is to be hoped that Section 2 of the IPC will not assume this interpretation in future proceedings.
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