Dutch marketplace website Marktplaats, acquired by eBay, can’t be held liable for copyright infringements, the Dutch Court of Appeal of Leeuwarden ruled yesterday. Stokke, manufacturer of chairs for children, sued Marktplaats because it wouldn't prevent sellers from placing infringing advertisements of counterfeit Stokke chairs and Marktplaats wouldn't take enough measures to remove these advertisements.

The Court decided otherwise. Marktplaats offers a facility where every seller can advertise on equal terms. It doesn't promote certain advertisements from certain sellers, so it doesn't play an active role as a service provider. According to the Court this means Marktplaats is a hosting service according to the E-Commerce Directive (Directive 2000/31/EC) and the Dutch Civil Code (article 6:196c paragraph 4) and may therefore rely on the legal indemnity mentioned in these legal frameworks This indemnity provision states that - in short - under certain conditions hosting services are not liable for copyrighted content on their websites.

In this case, Marktplaats can successfully rely on the legal safeguard for hosting services. Marktplaats has a notice-and-takedown procedure where infringing advertisements can be reported. After a notice, Marktplaats takes immediate action to remove the advertisement. It is not proportionate to require from Marktplaats that it actively has to search for infringing advertisements, in particular because Marktplaats has proved that 95% of the advertisements in which Stokke chairs are offered are legal.

This ruling has clarified the position of hosting services in intellectual property infringements. Also, it explains how online marketplaces such as Marktplaats can be seen as hosting services according to the E-Commerce Directive.

Read more about the liability of hosting services on FutureOfCopyright.com:

• Viacom vs. Google: Notice and takedown may not be enough for YouTube to escape liability
• YouTube qualifies for Safe Harbor provisions and has no general monitor obligation

Source: decision of the Court of Appeal of Leeuwarden, 22 May 2012 (in Dutch)

By: Marjolein van der Heide