Lawsuits
Deutsche Bahn vs XS4ALL (Radikal)
In 1996, the authorities forced German internet service providers to block the website of the XS4ALL customer Radikal. Around that time, there were fierce protests against the transportation of nuclear waste on German railways, and the Radikal site explained how the shipments could be delayed or blocked by sabotage. In 2002, the German rail company Deutsche Bahn (DB) demanded that XS4ALL remove the information. XS4ALL took the view that the information was not indisputably unlawful; it had been there for many years without any problem, and there was no ban on the hard copy version of the information in the Netherlands.
DB took the case to court. The court ruled that the material was indeed unlawful and should therefore be removed. It also found that XS4ALL had acted unlawfully by failing to remove the material immediately when requested to do so by DB. This was an important judgement: the court did not appreciate XS4ALL's reticence; the website was intended to cause harm to persons and property, and XS4ALL should have removed the material immediately, without intervention by the court. This lawsuit brought by Deutsche Bahn against XS4ALL actually revolved around the question of how far freedom of speech extends on the internet.
All XS4ALL news releases about lawsuits
Scientology vs Karin Spaink & XS4ALL
After 10 years, the legal battle waged by the Church of Scientology against XS4ALL and Karin Spaink came to an end on 16 December 2005. The conflict revolved around publications of the Fishman Affidavit on the internet. In 1995, this US court testimony had included quotations from documents belonging to the Scientology sect in America. The texts were presented as evidence in the lawsuit and were therefore public. Thanks to the internet, which was then growing fast, the texts were passed around the world at lightning speed. The publicist Karin Spaink posted them on her XS4ALL-hosted website to back up her criticism of the sect.
Scientology attempted to have the texts removed from websites throughout the world by claiming copyright and issued a summons against Spaink and her internet service provider. Scientology accused XS4ALL and the other defendants of breach of copyright. XS4ALL believes that, as an internet service provider, it is not responsible for the acts of its users. Moreover, the defendants' intention was not to breach copyright but to initiate a social debate about Scientology.
On 5 September 1995, a bailiff, assisted by representatives of the sect, raided the premises of XS4ALL to seize materials of clients that Scientology claimed to be in violation of its copyright. Spaink, XS4ALL and 20 other internet service providers whose customers had placed Scientology documents on their websites were summoned to appear in interim injunction proceedings. The presiding judge dismissed Scientology's claims.
A long drawn-out judicial process ensued, in which the proceedings constantly went in favour of Spaink and XS4ALL. XS4ALL and Spaink won against Scientology on a total of four occasions (interim injunction proceedings, first instance proceedings on the merits, appeal and dismissal of the cassation appeal). Scientology was not able to pursue the case to the European Court of Justice, so it really had come to an end. It was an important judgement: the court ruled that internet service providers are only suppliers of technical facilities. That means they are not liable for material which customers place on their websites. Critical voices on the internet cannot be silenced simply by invoking copyright.
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XS4ALL vs AbFab
On 12 March 2004, the Supreme Court ruled that XS4ALL had the right to refuse spam on its network. That means that an internet service provider has no conveyance obligation. The ruling marked the end of a lawsuit brought by XS4ALL at the beginning of 2002 against the spammer AbFab. This Amstelveen-based company was involved in sending bulk commercial e-mail, also known as spam. The Supreme Court considered that the fact "that XS4ALL has exclusive rights to its computer capacity, transmission capacity and customer base (its computer system)" outweighed the appeal made by AbFab for freedom of speech.
XS4ALL was pleased with this judgement, but was also concerned at the categorical way in which the Supreme Court allows proprietary rights to prevail over freedom of speech. XS4ALL attaches great importance to the free movement of messages and agrees with the Advocate-General that providers must have sufficiently weighty grounds if they seek to prevent third parties from using their facilities. XS4ALL will only refuse traffic in advance if it would cause a technical nuisance, as in the case of spam and viruses.
On the basis of this judgement, all providers in the Netherlands can place a prior ban on the sending of spam, even if it is addressed to their business customers. This judgement therefore goes further than the legal prohibition of spam in the Netherlands (since 19 May 2004), which only prohibits the spamming of private e-mail addresses, leaving business e-mail addresses unaffected.
All XS4ALL news releases about spam