On 16 February 2022, the District Court of Amsterdam ruled in a case between the foundation Stop Online Shaming (the “Foundation”) and a pornography website called vagina.nl (the “website”), which shows graphic content of persons who are not aware of this and have not consented to this.District Court of Amsterdam 16 February 2022, ECLI:NL:RBAMS:2022:557
The case concerns the question of whether the website is liable for the unlawful content published by users on the website. In this case, the Foundation acts as the exclusive representative for the alleged victims of unlawful content (persons who appear in the content without their explicit consent).
The District Court opens its decision with the conclusion that the exemption from platform liability does not apply. According to Article 6:196c of the Dutch Civil Code (and the e-Commerce Directive), this exemption does not apply when the platform knows or should reasonably know that the information published is unlawful. If the platform actively intervenes – i.e. by preselecting the content – the platform is considered to have knowledge of the content and the liability exception does not apply. According to the District Court, the explanation given by the website at the hearing shows that the website does preselect content. A video of a forest that the Foundation tried to upload was not published by the website. According to the District Court, this too shows that the website preselects content.
Subsequently, the District Court rules on the question of whether the website acted unlawfully. According to the District Court, it is unlawful to publish content on an adult website if that content shows recognisable persons who are (completely or partly) naked and that content has been secretly filmed in places where these persons thought they were unobserved. Furthermore, it is unlawful to publish content on these websites that is not professionally produced and shows recognisable persons performing sexual acts in private, unless those persons consent to the publication of the content. Vagina.nl is therefore ordered to remove all unlawful content and pay damages to the victims.