THE LIABILITY OF INTERNET SERVICE PROVIDERS IN THE NETHERLANDS ANTILLES
The liability of an ISP is not unlimited
An Internet Service Provider (ISP) is primarily a conduit that passively allows for the transmission of data: an on-line intermediary. One cannot expect an ISP to monitor all of the services that it may give access to: an ISP offers numerous web-based services and the use of countless web pages. No ISP is able to monitor the content of al those pages accurately on a day-to-day basis. On the other hand, an ISP is arguably best placed to block and remove offensive material.
Under the European E-Commerce directive 2002, ISPs risk liability for apparently illegal content from their customers. Once they are notified, they should take immediate action to block or remove the content. The Netherlands Antilles is not a EU member and said directive is not applicable.
According to the Ordinance on agreements to be concluded electronically (‘Landsverordening overeenkomsten langs elektronische weg’) an internet service provider is the natural person who or legal entity which offers services for facilitating information by electronic means. Electronic means is described as the transmission or storage of data, which are converted for this purpose into series of electronic, radio-electric, electromagnetic, or optical signals. Commercial communication is the offering of services and products by electronic means.
Under Netherlands Antilles law, a service provider is not liable for the contents of commercial communication or other information dispatched or stored through its intermediary by electronic means, on condition that the ISP:
- is not the one from which the information originates;
- did not select the receiver of the information;
- did not select nor altered the information passed on;
- does not know actually that the information is unlawful or concerns illegal activities, and
- does not infringe any prohibition by offering his services.
An internet service provider is under the obligation to remove information or make access to it impossible, as soon as it has been ordered to remove the information or access to it has been prohibited by or on behalf of the Minister of Economic Affairs of the Netherlands Antilles, as well as when it has to be clear to the ISP that this information is unlawful or concerns illegal activities. The Minister can only order the removal and only prohibit access, if the information is unlawful or concerns illegal activities, or is contrary to public order and public decency, or if the public interest or the safety of the Netherlands Antilles expressly make this necessary.
An ISP can be held liable on several grounds, for example contract law, copyright and trademark infringement and tort in general. Finally, the most difficult issue to deal with, is liability in foreign jurisdictions. What might be legal in one country, is not necessarily legal in another country as well. Postings are available to the worldwide public. For that reason, treaties like the Berne Convention (in force in the Netherlands Antilles) and the WIPO Copyright Treaty regarding the protection of literary and artistic works (not in force in the Netherlands Antilles), are of the utmost importance.
Karel Frielink
Attorney (Lawyer) / Partner
