When is an online platform liable for copyright infringement by a user?

An online learning platform, forum or online marketplace is flooded with content uploaded by users. What if a user posts material that violates the copyright of someone else? The question of who is then liable - the user or the platform - is crucial. In principle, a platform that plays a purely passive, technical role is not liable. However, this “safe harbour” provision ceases to apply as soon as the platform becomes “aware” of the infringement and fails to act immediately to remove the content.

The facts: a copied presentation on a learning platform

A case before the Antwerp Enterprise Court, Antwerp Division focused on this question. A tax expert, Mr. Y.V., claimed that a colleague (Mr. M.V.) had copied most of his presentation, thereby infringing his copyrights. Having already reached a settlement of €5,000 with the colleague who had made the presentation, the expert turned his attention to the company ELEAS, an online learning platform.

The ELEAS platform had posted the presentation in question by M.V. on its website. The plaintiff, Y.V., was of the opinion that by doing so, the platform itself committed an autonomous copyright infringement. Among other things, he demanded a ban on further distribution, a publication of the verdict on the ELEAS website and preliminary damages of €25,000.

The platform defended itself by arguing that it is merely a passive "hosting provider" and therefore enjoys the statutory liability exemption.

The decision: platform enjoys 'safe harbor' immunity

On 16 January 2025, the Antwerp Enterprise Court ruled that the platform was indeed not liable and dismissed the claim in its entirety.

The court assessed the facts against the conditions for liability exemption for hosting services. These rules, previously found in Article XII.19 of the Code of Economic Law and now found in the Digital Services Regulation (DSA), stipulate that a host is not liable for stored information if four conditions are met.

The court found that ELEAS met all four conditions:

1. The platform acted passively: The court ruled that ELEAS had not played an active role that gave them "knowledge of or control over" the content. The platform had no control over the content of the presentation; that was entirely attributable to Mr. M.V.. The fact that the platform has commercial terms (such as a paywall or the right to modify content) does not automatically mean that it played an active role in the creation of this particular presentation.
2. The platform had no knowledge: It had not been demonstrated that ELEAS knew prior to a report that the presentation was (potentially) infringing.
3. The platform acted promptly (Notice and Take Down): This is the crucial condition. As soon as the claimant gave notice to the platform (the ‘notice’ moment), that was the first moment of ‘knowledge’. ELEAS promptly responded by taking the presentation offline ("take down").
4. The user was not acting under supervision: Mr. M.V. had drafted the presentation freely, without guidelines or editorial interference from ELEAS.

Since all conditions had been met, the platform could not be held liable for the (alleged) infringement.

Legal analysis and interpretation

This ruling is a textbook example of the safe harbor for hosting providers. Without this legal protection, platforms that rely on user-generated content (such as social media, forums, or online marketplaces) would face an untenable legal risk. They would be required to preemptively monitor all uploads, which is technically and economically unworkable.

The line between 'passive' and 'active'

Immunity applies only to services of a "purely technical, automatic and passive" nature. Case law, including from the European Court of Justice, has clarified this boundary on several occasions. A platform loses its passive status and becomes an "active" host (or even a "publisher") if it:

• Optimize content presentation (e.g., promote sales offers);
• Self editorially intervenes in content;
• Has knowledge of or control over the specific data stored.

In this case, providing an online course environment, even for a fee, was not sufficient to be considered an "active" role that would break the immunity.

Penalty for 'manifestly unreasonable' claim

A very striking element in this judgment is the assessment of the damages claim. The court notes (in addition) that the damages of €25,000 were not substantiated in any way. The plaintiff did not demonstrate any concrete reputational damage or loss of profits. This was all the more problematic because the presentation in question had only been viewed by three end users.

The court describes the claim as "completely disconnected from any sense of reality" and an attempt to "extort" money "on the basis of highly contestable claims".

Because of this "manifestly unreasonable nature" of the claim , the plaintiff was ordered to pay the maximum litigation fee to the platform. This serves as a clear warning against bringing frivolous or defamatory claims.

What this specifically means

• For online platforms (hosting providers): Your safe harbor immunity is your main defense. Make sure your role remains technical and passive. Crucially, implement a watertight "Notice and Take Down" procedure. Respond immediately to any substantiated complaint of illegal content (such as copyright infringement) by taking the content offline and carefully documenting this process.
• For copyright holders (e.g., photographers, writers): If your work appears online without permission, the user who uploaded it is the primary infringer. You can use a formal notice to force the platform to remove the content. A lawsuit against the platform itself is only likely to succeed if you can prove that the platform had "knowledge" but did not act, or played an active role.
• For users (who upload content): You are and will remain primarily liable for the content you post online. The fact that the platform is not liable (for the time being) does not mean that you are not. After all, in this case the uploader (M.V.) had already paid a settlement of €5,000.

FAQ (frequently asked questions)

What is the difference between a "host" and a "publisher"?
A 'host' (or hosting provider) provides only the technical storage space and infrastructure (e.g., a web hosting company, a cloud service, or a passive platform). A 'publisher' (publisher) has active editorial control and decides what content is published (e.g., an online newspaper). 'Safe harbor' immunity applies only to hosts, not publishers.

What does the Digital Services Act (DSA) change about this?
The DSA replaces and modernizes the rules that were based on the old e-Commerce Directive. The basic safe harbor principles for hosting remain in place, but the DSA imposes clearer, stricter and more harmonized rules for Notice and Take Down procedures, transparency and dealing with illegal content.

What does "manifestly unreasonable" litigation mean?
This refers to bringing a claim that has no serious chance of success, or is brought with intent to harm (agonizingly and recklessly). If a court finds that a claim is "manifestly unreasonable," it may order the plaintiff to pay the maximum possible litigation fee, as a penalty for abusing the right to sue.

Conclusion

The liability exemption for hosting providers is a strong but conditional protection. A platform that remains passive and adequately responds to notices of infringement cannot be held liable in Belgium for the mistakes of its users. This ruling confirms the importance of a correct Notice and Take Down policy while warning plaintiffs against bringing excessive or unfounded claims for damages.