For those who have not come across Tor before, it is a system for anonymous communication:
Tor is a network of virtual tunnels that allows people and groups to improve their privacy and security on the Internet. It also enables software developers to create new communication tools with built-in privacy features. Tor provides the foundation for a range of applications that allow organizations and individuals to share information over public networks without compromising their privacy.I am not familiar with Austrian law, but, were I in this position — and I must confess that I have advised against running Tor exit nodes before, on the basis of the possibility, which I'd actually rated as a likelihood, of law enforcement activity against you as the operator — I would be looking to argue that I was protected by Art. 12, 2000/31/EC:
Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:This the "common carrier" wording which most Internet access providers rely on as a shield from prosecution for exactly this sort of activity — there's a bit of a disjunct around whether the activity is actually the provision of an electronic communications service rather than an information society service, but the underlying principle seems that it should apply here.
- does not initiate the transmission;
- does not select the receiver of the transmission; and
- does not select or modify the information contained in the transmission.
It appears that the authorities did not initially understand that Mr. Weber was not the originator of the phonographic images and was simply providing "mere conduit" services. If they had understood that perhaps Article 12 (3) would have been a more appropriate way to proceed by notifying Mr. Weber of the infringement and requiring him to terminate the infringement.
ReplyDeleteThat's an interesting approach, Zizi.
DeleteMy immediate thought is that article 12(3) is a power limitation, rather than a grant — a court cannot take action on the basis of Article 12(3). Instead, Article 12(3) means that a court cannot be limited in its application of local legal provisions for the purpose of granting an order to terminate an infringement by virtue of Article 12.
I wonder also whether there would be a challenge here because of the technological basis of Tor — whilst a court may be entitled by local law to make such an order, it would need to take into account the impact of freedom of expression. I am not sure whether a Tor exit node operator could configure the node in such a way that it could block access to indecent images of children — as an exit node, it has more chance than an intermediate node, I suppose, but it would not be at all easy — as you may be aware, stopping accessing to indecent images of children is no easy task even for large ISPs. If it was not practical for an exit node operator to block selectively, the court order would have the effect of switching off the exit node, which could have a significant impact of freedom of expression, although not the expression of the node operator.