Wilful Blindness
| Autor | Nicolo Zingales |
| Páginas | 323-324 |
323
Wilful Blindness
100 Wilful Blindness
Nicolo Zingales
Willful blindness is a doctrine that is used by Courts to substitute for
actual knowledge, especially in criminal cases, where a defendant
could foresee the existence of wrongdoing, but deliberately avoided
making an inquiry about it. Black’s law dictionary defines it as
“Deliberate avoidance of knowledge of a crime, esp. by failing to
make a reasonable inquiry about suspected wrongdoing despite
being aware that it is highly probable”, explaining that “A person
acts with willful blindness, for example, by deliberately refusing
to look inside an unmarked package after being paid by a known
drug dealer to deliver it. Willful blindness creates an inference of
knowledge of the crime in question (Model Penal Code § 2; Cases:
Criminal Law 20, 314. C.J.S. Criminal Law §§ 31–33, 35–39, 700;
Negligence § 913.)
The term has been used repeatedly in the context of copyright,
to identify exceptions to the safe harbor in particular for hosting
intermediaries. Its role is strongly related to the concept of red
flag knowledge, as it may enable copyright holders to circumvent
the need for online service providers to be aware of specific and
identifiable infringements for the purpose of establishing the
requisite (constructive) knowledge. However, the Second Circuit
in the Viacom case has refused to provide that basis, by essentially
merging the two doctrines and requiring in both cases knowledge
and awareness of specific and identifiable infringements.
The Copyright Office, in its recent Report on Section 512 of the
Digital Millennium Copyright Act, has suggested to expand the
reading of this concept as applied to the conditions for the safe
harbor of intermediaries, going beyond the Second Circuit´s strict
and bringing it in line with the interpretation of willful blindness
both in other areas of copyright infringement, and outside the
copyright context.
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