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A registrar (that registers domain names) is not automatically liable for copyright infringement on a website it does not host. However, a registrar can be asked to do three things: pass the complaint on to the (anonymous) customer, break the anonymity by providing name and address, or disconnect the domain name. If you do not request this, the registrar can hardly be blamed.
You may not simply place copyrighted images on your website; the rights holder can demand removal and compensation. But what if the infringer remains anonymous? In that case, under certain conditions, you can turn to other parties—such as the hosting service or the registrar—to ascertain their identity. This was the subject of a case involving photos of then-Minister Ferdinand Grapperhaus.
What was the case about?
A photographer took photos and videos of Minister Grapperhaus's wedding that were published with permission, showing him shaking hands despite coronavirus measures. That material was subsequently used without permission on a socially critical website (ECLI:NL:RBAMS:2021:1807).
In the SIDN Whois, the domain name holder was listed as “Privacy protected by Hostnet”. Hostnet is the registrar: an intermediary that handles domain name registration and, upon request, hides the owner's name. Such privacy protection services are permitted.
What did the registrar do?
The creator demanded the removal of the images and compensation for damages via the email address on the site; there was no response, and the images were used again. Thereupon, his lawyer summoned Hostnet, arguing that the registrar was responsible. Hostnet immediately stated that it was merely a registrar: the images were hosted by the American SingleHop LLC, so Hostnet could not remove them. Hostnet informed the client, after which the client terminated the contract and switched to a registrar in India. Following a subpoena, Hostnet disclosed the identity of its former client.
The judge: Hostnet made no mistake
The Amsterdam District Court ruled that although there was copyright infringement and damages, Hostnet did not infringe upon them and committed no error. After all, Hostnet had immediately clarified with which hosting provider the images were located and where people could go for removal.
The judge identified three things within the power of a registrar: (1) passing the complaint on to the anonymous customer, (2) breaking the anonymity by providing name and address, or (3) unlinking the domain name/website. It is up to the plaintiff to request one of those actions — and that had never happened. Moreover, Hostnet had voluntarily informed the customer and later provided the name itself; unlinking was no longer possible because the customer had already left. Hostnet was found to be in the right; the plaintiff had to pay approximately 2,500 euros in legal costs.
Limits to customer privacy
Privacy is valuable — which is why we offer our GDPR package at a competitive price — but it cannot always be guaranteed. Hostnet could lawfully be required to disclose the identity of its customer. Privacy agreements must not be misused for infringements or illegal activities. Read more about the sharing of personal data in the event of third-party claims and about how a hosting company handles unlawful content.
Frequently Asked Questions
Is a registrar liable for infringement on a website?
Not without further ado, certainly not if he does not host the site. However, he may be asked to forward the complaint, provide his identity, or disconnect the domain name.
Can I find out the identity behind an anonymous website?
Under certain conditions, yes. You can ask the registrar or hosting provider to break the anonymity, provided you have a legitimate interest and a balancing of interests permits it.
Does a privacy service fully protect an infringer?
No. Privacy agreements may not be misused for copyright infringement or illegal activities; in such cases, disclosure of identity may be required.
Questions about copyright or online infringement?
The copyright specialists at MKB Juristen help you tackle infringement or identify an anonymous infringer. Schedule an intake meeting .
