Peer-to-Peer Privacy Violations and ISP Liability: Data Protection in the User-Generated Web

Abstract

Since the adoption of the e-Commerce Directive, web hosting has dramatically changed. User generated content is usually uploaded into platforms that facilitate and support users in preparing content and making it available. Such platforms are run in most cases by commercial companies who make profit by associating advertisements with user-generated materials. This paper will address the issue of the legal framework applicable to the ISPs managing platforms for user-generated contents. Can they be considered as mere host providers, even though their activities include not only distributing user-generated content, but also indexing it and linking it to advertising? As user-generated-contents often concern third parties, the paper tackles the question whether liability exemptions are applicable also to data protection violations regarding third parties’ information uploaded by users. This issue is addressed through a comparative analysis of cases on liability of providers of user generated content, in particular with regard to data protection violations. We will take into account ECJ’s decisions, EU and non-EU states’ case law, as well as opinions of the national data protection authorities.