Digital Markets, Rules of Conduct, and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement

Abstract

This chapter will explore the liability of online intermediaries (OIs) under European law, with a focus on infringements of rights and legal interests other than IPRs. The main research question is whether European law adopts a consistent regulatory approach with regard to content hosted by OIs against rules on market functioning that do not assign exclusive rights but simply impose rules of conduct (e.g. rules on unfair commercial practices). This chapter investigate whether and under which conditions OIs are liable and—beyond the liability of OIs—whether the interests protected by European laws governing the functioning of the market receive the same level of protection in different contexts. To carry on such analysis, the chapter takes into consideration as case studies two bodies of the law, the first one dealing with online unfair commercial practices (UCPs) and the second one with the unlawful acquisition, use, and disclosure of trade secrets. After having summarized the distinguishing features of the safe harbour regime and its interplay with injunctive relief, the chapter will focus on the UCPs and Trade Secrets Directives in relation to the position of OIs. Reference is made to the criteria of interpretation of European law in order to assess the relationship between specific provisions and the concurrent regime set forth in the e-Commerce Directive. Finally, this chapter assesses the emerging results, highlighting the issues which hinder the creation of a coherent and satisfying legal framework.