In message <1609071e-bf44-4e1d-9c81-98616f11b...@consulintel.es>, JORDI
PALET MARTINEZ via anti-abuse-wg <anti-abuse-wg@ripe.net> writes
>El 16/1/20 21:37, "anti-abuse-wg en nombre de Richard Clayton" <anti-abuse-wg-
>boun...@ripe.net en nombre de rich...@highwayman.com> escribió:
>
> In message <a882c67b-0bb5-4ee3-b4cf-7c5ee62cd...@consulintel.es>, JORDI
> PALET MARTINEZ via anti-abuse-wg <anti-abuse-wg@ripe.net> writes
>
> > I'm sure if the
> >service provider tries to avoid being "informed" by not looking at
>notifications
> >(email, postal, fax, etc.), they will also be liable in front of courts.
>
> correct, but that's a "Hosting" aspect and that's not necessarily the
> issue when considering spam (which is certainly some of what is being
> considered under the generic "abuse" label)
>
>I'm not sure to understand what do you mean. In my opinion, if the hosting
>provider is the resource-holder of the addresses being used for any abuse
>(including spam), he is the responsible against the law and he is consequently
>liable of possible damages.
The ECommerce Directive gives a free pass to companies that just pass
packets around ("Mere Conduit") ... so if you complain to AS<n> that
there is a spammer using their network and they do nothing then suing
them is unlikely to be productive.
You need, in such a matter, to take proceedings against the spammer (and
the Court may assist you in compelling the network provider to reveal
what they know about the spammer).
The ECommerce Directive also gives a free pass to a hosting company in
respect of material they publish such as (where this thread started) a
website claiming the people operating AS<n> are pondscum and regularly
rape their mothers ... but once the hosting company has "actual
knowledge" of this defamatory material then they must act to remove it.
If they do not do so then you can take legal proceedings against them
for continuing to publish the libel.
You may have some opinion of your own as to whether this is right (and
this, as covered earlier, is not the same in the USA) ...
... but until you explain exactly the legal basis on which you intend to
proceed against a resource holder and exactly the sort of harm which
they are facilitating (not all abuse is the same in law) then it's
impossible to say whether some special situation applies (and your
opinion about liability is correct) or whether the overarching
provisions of the ECommerce Directive (which override laws that appear
to say something else) mean that you cannot proceed against a network
provider at all or a hosting company that does not have actual
knowledge.
IANAL, jurisdictions differ (but Directives bind all EU Member States)
--
richard Richard Clayton
Those who would give up essential Liberty, to purchase a little temporary
Safety, deserve neither Liberty nor Safety. Benjamin Franklin 11 Nov 1755
