THE UNAUTHORIZED OFFERING OF COPYRIGHTED MOVIES UNDER THE LAWS OF THE NETHERLANDS ANTILLES
What are the service provider’s obligations?
Suppose you are a service provider (operator, i.e., an entity which offers services for facilitating information by electronic means) based in the Netherlands Antilles. One of your customers downloaded a copyrighted movie and (allegedly) offers the same to others without any required permission. The foreign holder of the copyrights demands that you disable access to the customer and take appropriate action against said customer. What should you do?
Netherlands Antilles law does not hold for a ‘notice-and-take-down’-system as is in place in certain foreign jurisdictions. In fact, there is no specific legislation with respect to (possible) obligations of a service provider in such cases of claimed infringement as there is in other jurisdictions as, for instance, the U.S. or the Netherlands.
However, in theory, (possible) obligations may be based on the general law of tort or the contract for services vis-à-vis the service provider and the subscriber (customer). Therefore, although such matters are not specifically regulated, this does not entirely preclude that in actual practice the service provider (e.g., based on the general law of tort, according to generally accepted standards there under) may be bound to abide by or observe one or more ‘rules of conduct‘ comparable to ones expressly stipulated in other jurisdictions.
Having said this, in general there is no legal obligation for a service provider to take (any of) the actions described. As was said, there is no ‘take-down’ obligation under Netherlands Antilles legislation for the service provider. And also, there are (possible violations of) privacy and other rights such as freedom of speech of the customer to consider. These rights would for instance, in the absence of statutory exceptions, prohibit the handing over of any identifying data voluntarily.
For any infringement claim to be established it must be indicated at what moment third parties downloaded files from the computer/IP-address in question. Therefore, there must be proof that the file was actually shared with other people. It is, for instance, common knowledge that not seldom files which on the face of it look like copies of popular movie or music files are in fact renamed hoax files, for the purpose of misleading sharing systems working with certain credit schemes.
In general, the prudent thing to do for service providers would be to refrain from actions as the ones described, because only a judge (or other judicial authority) could define, for instance, if such a required privacy or other rights violation is legitimate and may order an injunction to release subscriber information or other measures such as account termination and to prevent further infringement.
Finally, article 10 par. 2 of the Netherlands Antilles State Ordinance on Agreements via Electronic Channels, provides that a service provider is prohibited from providing third parties with personal customer data without the express consent of the customer concerned, unless this takes place based on a statutory obligation.
Karel Frielink / Ursus van Bemmelen
Curacao-based Attorneys (Lawyers)
