Commission decision threatens residential listings

Former Woolworths store in Acocks Green - Retail Unit To Let - sign

Last week the WRC ordered property website to remove adverts that were found to be in breach of the Equal Status Acts. Adverts posted by users that contained terms like “suit young professionals, “rent allowance not accepted”, “references required” were held to be discriminatory by the Commission.  

The WRC found that has vicarious liability for advertisements placed on its website by third parties where these were in breach of the Acts. It held that was not shielded from these obligations by virtue of its status as an ‘Information Society Service Provider’ (ISSP) under the eCommerce Directive (2000/31/EC), which allows internet intermediaries limited exemption from secondary liability as ‘conduits’ or transmitters of information.

The WRC adjudicator declared that there was no evidence before it to allow the exemption under the Directive and it directed to implement a methodology to “identify, monitor and block discriminatory advertising on its website”. Without a more detailed description – and none is offered in the ruling – of how the WRC adjudicator arrived at her decision, it is impossible to assess the weight that was given to various factors outlined in the submissions.

The carving out of the exemption is a cornerstone of the eCommerce Directive and aims at preserving the intermediary model and preventing unintended collateral censorship. The Directive does allow for a service provider to terminate or prevent an infringement at the direction of a court or administrative authority; however, the direction by the adjudicator for to put in place a system that would automatically flag potentially discriminatory postings to the site conflicts with provisions of the Directive that prevent member states from imposing a general obligation on ISSPs to monitor the information that they transmit or store, nor to actively seek facts or circumstances indicating illegal activity.

Considering the near inevitability of occasional users of’s services posting adverts using discriminatory language, the question remains whether is the correct entity to automatically screen out all potentially discriminatory language. In light of rapidly evolving technological solutions to ‘policing’ the internet, there have been high-level discussions about whether the current Directive needs to be revised. Certainly, the WRC decision referred to competitors that have adopted a process such as the one it proposes. Nevertheless, as the law currently stands, there is a question mark over whether the WRC correctly applied EU law and whether on appeal the High Court would uphold its decision.