This blog was first published online in Dutch on 11 October 2022 as an opinion piece for NRC newspaper. Below is the original English translation.
On 16 September, NRC newspaper published the article: “How the Netherlands facilitate the most hated websites in the world”. The article, written by Carola Houtekamer and Rik Wassens, describes how internet hosting services based in the Netherlands provide services to the extremist, far-right website 8kun. The journalists’ finding that Dutch companies ‘facilitate’ the website raises an interesting question. If 8kun is being used to commit or support crimes, could persons or companies be liable under Dutch criminal law for providing services that ‘facilitate’ the website?
Article 51 of the Dutch Criminal Code provides for the legal liability of companies. According to Article 48 of the Dutch Criminal Code, persons or companies who intentionally assist the crimes of others may be liable as an accessory. The conduct could be any act that assists, encourages, or facilitates the commission of a crime. Importantly, an act of assistance must have some causal effect on the crime. In providing the assistance, an accomplice must foresee that their help or influence could contribute to the crime. This can be construed as conditional intent, where an accomplice willingly accepts the real risk that the result could come about.
Accessorial liability requires a principal offence to which an accomplice can contribute. Houtekamer and Wassens don’t appear to suggest that 8kun or its owner are committing crimes. Certainly, if those operating the website know of its continued use in criminality, they could be liable for assisting crimes (a topic for another day). It seems that 8kun users may use the site as a tool to commit crimes directly by distributing child pornography, disseminating hate speech, and inciting violence. Reports also suggest that 8kun users use the site to help and influence others to commit crimes offline. I wrote about this type of assistance in a blog for the Rethinking SLIC project, titled “A different type of tech support”.
Providing services which allow a website to operate could qualify as an act of assistance which triggers accessorial liability. But it’s difficult to say whether the activities of hosting services causally affected crimes which occurred on the website or elsewhere. The hosting services (which include data centres) are essential to 8kun’s operation – evidenced by the downtimes the site experiences when these services are withdrawn. But the services are provided to the website, not the 8kun users who commit or support crimes through the website. There are a few steps (intervening acts, even) to get from the acts of the Dutch hosting services to those who carry out the principal crimes. Consequently, the acts of the hosting services may be too far removed, or too remote, from the principal crimes to assign liability.
If a hosting service took an active role in 8kun’s operation, perhaps exerting some control or influence over the site’s activities, it might be easier to demonstrate their actions facilitated 8kun users who engaged in criminality. Moreover, if the website or its owner committed crimes, it might be easier to demonstrate that the hosting services contributed to those, more proximate, crimes.
Turning to the mental requirement, it’s relatively clear that the hosting services intended their acts of providing services to website operators. This constitutes their normal business practice. However, it will be more difficult to establish that they knew or foresaw that their acts of assistance would contribute to crimes – especially those crimes occurring off the site. Given the infamous reputation of 8kun (a site linked to racism, extremism, and criminality), if the companies knew that their services were facilitating the operation of the site, arguably, they might have foreseen their contributions to certain types of criminality.
There’s something else to consider. According to Article 54a of the Dutch Criminal Code, internet intermediaries (including hosting services) that transfer or store data originating from other persons won’t be prosecuted for offenses committed by those using that service, so long as the intermediaries comply with a prosecutor’s order to remove illegal material. However, Article 54a is unlikely to protect hosting services that take an active role in handling the data.
Hosting services that facilitate the operation of sites, like 8kun, may be at risk of accessorial liability if it can be demonstrated that their assistance affects a crime, and they foresee the effects of their assistance. But internet intermediaries enjoy some immunity from prosecution. What’s more, accessorial liability can be difficult to establish for business activities that occur along complex and opaque supply chains. Complexity dilutes responsibility across a network of actors and opacity provides a shield of ignorance.
As it currently stands, criminal accessorial liability may not be well suited for dealing with this type of facilitation. Perhaps the reasons behind this deserve further attention.