UK-based Out-law has recently reported, in one of its excellent legal podcasts, on recent cases in France in which the courts have held that website operators who republished RSS feed content onto their sites were legally responsible themselves as publishers of what transpired to be posts that were invasive of certain third parties’ privacy rights. The fact that, due to the nature of the RSS parsing technology, their websites were automatically updated when the incoming feeds were updated was no excuse. In other words, the French courts disagreed with the website operators’ argument that they exercised no editorial control over the publications.As far as I am aware, these are the first cases internationally to have considered this issue. While one needs to be somewhat cautious when considering the relevance of cases from a foreign jurisdiction in New Zealand, particularly from a civil law as opposed to common law jurisdiction, these cases are highly notable for being the first to consider what is likely – in this Web 2.0+ world – to become an increasingly important issue given the increasing number of sites that aggregate content via RSS.
In my opinion, under New Zealand law, there is not necessarily a ubiquitous answer to the question of whether populating one’s website with third party content – via an incoming and automatically-updating RSS feed – that breaches someone else’s rights, will render the website owner liable to that “someone else”. It is likely to depend on the nature of the offending content, the cause(s) of action to which publication may give rise and the possible defences to those causes of action. So, for example, causes of action could include defamation, breach of copyright, invasion of privacy or breach of confidence. Also potentially relevant in some cases will be whether the website owner added the RSS feed to its site itself, or allowed site users to add an RSS feed (as is now possible with some web services).
What seems clear, however, is that the French cases are a reality check for those who may either be careless about the content they parse onto their sites via incoming RSS feeds or be labouring under an assumption that “I didn’t create the content so can’t be liable for it”. In some circumstances, the website owner may well be liable.
Some website operators may be dismayed at the prospect of liability in such circumstances. I don’t think they should be. Either they take care in their selection of incoming RSS feeds (and, where possible and appropriate, seek warranties and/or indemnities from the feed providers) or they use or create tools through which the website operator needs to approve queued feed items before they go live.