E-Commerce Directive Research Articles

Liability of domain name registries: Don't shoot the messenger

The domain name system (DNS) is fundamental to the Internet, because it translates domain names to and from computer (IP) addresses. This system is, however, increasingly used as a tool to combat unwanted online content. In this process, the system's most central operators (“registries”) are targeted by right holders, authorities and other claimants, even though the registries fulfil a mere technical role as an online intermediary, and are quite distanced from the actual content.This contribution presents arguments why registries and other DNS-operators would be protected against several types of domain blocks, monitoring duties and liability claims. These arguments are not only supported by a forward-looking interpretation of the special protection regime for mere conduit, caching and hosting providers of the EU eCommerce Directive 2000/31/EC, but also by Enforcement Directive 2004/48/EC and general EU law, as interpreted by the Court of Justice of the European Union.

The Shaky Ground of the Right to Be Delisted

It has long been discussed whether individuals should have a “right to be forgotten” online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v AEPD, the Court of Justice of the European Union addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results, in searches made on the basis of their name. It found that they do have this right – which can be best described as a “right to be delisted” – when some conditions are met. The ruling, which imposes on search engines the duty to assess and accommodate delisting requests, has proven to be highly controversial. Strong feelings have been expressed either in favor or against it, in what may be seen as a clash between the values of personal data protection and freedom of expression. This article does not delve into this underlying debate. Instead, it aims to explore the solidness of the ground on which the right is based. It begins by providing an overview of the relevant elements of EU data protection law so as to allow readers not familiar with its nuances to properly follow the discussion. After presenting the facts of Google Spain, both at national and EU level, the article discusses how the ‘right to be delisted’ was crafted by the CJEU. It argues that it is based on shaky ground, as it is premised on the characterization of search engines as “data controllers,” which is arguably at odds with their intermediary role and – in the absence of specific safeguards – makes their activity largely incompatible with the data protection legal framework. Moreover, the article discusses how the Court failed to devise a proper balance of the different rights at stake, particularly that of freedom of expression and information. It suggests that the intermediary role of generalist search engines should be adequately protected, both under the data protection legal framework as well as under the liability limitation scheme established by the E-Commerce Directive. This, however, is not likely to be achieved in the near future. A careful approach by national courts and data protection authorities is thus suggested as a way to fix some of the shortcomings identified in the ruling.

Malicious web pages: What if hosting providers could actually do something…

The growth in use of Internet based systems over the past 20 years has seen a corresponding growth in criminal information technologies infrastructures. While previous “worm” based attacks would push themselves onto vulnerable systems, a common form of attack is now that of drive-by download. In contrast to email or worm-based malware propagation, such drive-by attacks are stealthy as they are ‘invisible’ to the user when doing general Web browsing. They also increase the potential victim base for attackers since they allow a way through the user's firewall as the user initiates the connection to the Web page from within their own network. This paper introduces some key terminology relating to drive-by downloads and assesses the state of the art in technologies which seek to prevent these attacks. This paper then suggests that a proactive approach to preventing compromise is required. The roles of different stakeholders are examined in terms of efficacy and legal implications, and it is concluded that Web hosting providers are best placed to deal with the problem, but that the system of liability exemption deriving from the E-Commerce Directive reduces the incentive for these actors to adopt appropriate security practices.

Communication, defamation and liability of intermediaries

The legal framework concerning liability of communication intermediaries for defamation is under-conceptualised. The paper thus develops a holistic doctrinal approach to liability of speech intermediaries, such as Internet service providers (ISPs), booksellers and newspaper vendors, for defamation. It views intermediary liability for defamatory speech against the backdrop of communication theory and freedom of expression doctrine. If properly conceptualised, as suggested in this paper, the law of defamation can accommodate the cyberspace-specific legislation in Arts 12–15 of the e-commerce Directive and s 5 of the Defamation Act 2013, as well as the innocent dissemination defence in s 1 of the Defamation Act 1996, now to be read together with s 10 of the Defamation Act 2013. The paper establishes six tenets of intermediary liability for defamatory content. In particular, it argues that ‘publication’ is to be conceptualised as a merely factual requirement for defamation, whereas the defence of ‘innocent publication’, also known as ‘innocent dissemination’, is a fault-based concept. Communication intermediaries are thus to be considered ‘publishers’, even if they have a merely automatic role in the publication process, but they may avail themselves of the defence of ‘innocent publication’. This defence has to be applied in compliance with the human rights of the parties involved.

Study on the Liability of Internet Intermediaries

Study on the Liability of Internet Intermediaries - EU Commission (MARKT/2006/09/E). Report drafted for the EU Commission on the state of implementation in the single member States of the e-commerce directive (2000/31/EC).

Intermediary liability & freedom of expression: Recent developments in the EU notice & action initiative

In the European Union, liability of Internet Intermediaries for third parties' content is regulated by the e-Commerce Directive. This instrument introduced liability exemptions for certain Internet Intermediaries, subject to specific requirements. The providers of so-called ‘hosting services’, for example, shall only enjoy such immunity provided they act expeditiously to remove illegal online content upon request. This mechanism, however, creates a risk for the fundamental right of freedom of expression. Without the necessary safeguards, this mechanism has the effect of inducing private censorship. Moreover, this mechanism has not been uniformly adopted in the EU countries creating a situation of great legal uncertainty. Cognisant of these problems, the EU has decided to review its rules on the Intermediary liability by commencing a ‘Notice and Action’ initiative. This paper describes the problem that the current legislation entails with regard to freedom of expression. From this perspective it, further, looks into the actions undertaken to this date by the European Commission on the topic of Notice and Action.

Old Economy v. New Economy: Intellectual Property, Global Wrongs and Private Remedies

During the last decade both US and Europe have regulated internet service providers liability (hereinafter referred to as ISPs). In 1998, the Congress has approved the Digital Millennium Copyright Act (DMCA) which has modified the Copyright Act of 1976, stating that ISPs are not liable if their activity is limited to a mere technical role which consists in transmitting information on digital networks.The same inspiration has been followed by the E-commerce directive (directive 2001/31/EC) which has imitated, verbatim in some cases, the American law. Two are the main differences among these laws. Firstly, the DMCA covers exclusively copyright infringements, while e-commerce directive can be applied both to criminal and civil liabilities. The latter difference is that e-commerce directive is limited to some activities developed by ISPs (mere conduit; caching; hosting), while the DMCA also regulates liability of search engines (like Google) and hyperlinks.The DMCA as well as the EU directive is based on the neutrality principle: ISPs are not liable as long as they do not select contents or recipients of the information transmitted. The most remarkable issue, however, is probably the fact that both regulations have refused to apply strict liability to ISPs. Starting from these regulations, the paper will analyze some examples of private regulations. It will be specifically examined YouTube’s Video ID and eBay’s Vero Program, probably the most relevant examples of cooperation between ISPs and IP holders, and the recent cases which has involved these tools in US, Spain, France and Italy. The paper aims at demonstrating that IP violations are not the crucial matter of these legal actions, which reflects a clash between different business models.Private remedies for IP violations, even if efficient, have not reached their goals. The reason is probably extralegal and is given by the fact that new economy services are attracting customers in the entertainment sector from traditional media (people watching YouTube rather than TV programs) and are diverting luxury brands consumers from traditional shops (people buying luxury products on eBay rather than on local dealers).

The Road of Cooperation: Assessing the Evolving Interaction between Copyright Owners and ISPs From ISP Legislation to the Graduated Response

Stepping into digital age, the digital technology with internet communication breed a new intermediary which significantly reshape the distribution of copyrighted works.Copyright owners seeks for other strategy in order to control the online piracy. They refer to copyright legislation as solution. Both US and EU respectively enacted the Digital Millennium Copyright Act (DMCA) and E-Commerce Directive which provides provisions to immune ISP’s liability in online copyright infringement so long as ISP complies with the requirement under the provisions. The graduated response system establishes the cooperation between copyright owners and ISPs. By transferring partial burden of enforcement to ISPs, copyright owners save substantial enforcement costs and increase the stakeholder in online copyright enforcement. To ISPs, the economic benefits and additional incentives encourage them to join the system and promote the cooperation. As a prospective enforcement strategy, various jurisdictions have adopted or begin to introduce the system to their countries. Simply put, the graduated response system requires an ISP to issue a notice to the subscriber when the subscriber is found to engage in online piracy. If the subscriber ignores the first notice, the subsequent notices will be sent and further actions would imposed on the subscriber. The focal point lies in that ISP should actively monitor the activities of their subscribers. According to the design, ISP under graduated responses system bear partial duty and costs of online copyright enforcement. Therefore, this system is welcomed and supported by copyright owners. On the other hand, ISPs also obtain benefits through the employment of this system by cooperating with copyright owners. Under the circumstances, both parties forge the aligning incentives under the system.

Secondary Liability for Trademark Infringement on the Internet: The Situation in Germany and the EU

It is a safe assumption1 that every one of the twenty-eight EU Member States has some form of secondary liability principles within its general tort law. Traditionally, tort law principles require an element of deliberate contribution to, and therefore positive knowledge of, another person’s action. They are therefore of limited value for situations like Internet infringement, because the contributor is typically unaware of persons committing concrete acts of infringement. When the contributor merely provides the technical infrastructure that is used by an anonymous crowd for legitimate as well as illegitimate purposes, the “deliberate contribution” or “positive knowledge” element is difficult to prove. The general principles of tort law are not harmonized within Europe.2 However, regarding Internet services that may be misused for unlawful acts (including, but not limited to, intellectual property infringement), the E-Commerce Directive has created a legal framework for exemptions from liability (the safe harbor).3 In that regard, the E-Commerce Directive is the European equivalent of the U.S. Digital Millennium Copyright Act (DMCA), with the notable distinction that the ECommerce Directive applies horizontally, thus encompassing trademark infringement. Articles 12 through 14 of the E-Commerce Directive stipulate that, regarding transmission, caching and hosting, no liability will ensue if the person

Hosting providers' liability: Cour de cassation puts an end to the notice and stay down rule

In applying the rules on hosting providers' liability, French lower courts have shifted from a notice and take down rule (provided by Article 14 of the E-Commerce Directive and Article 6 of the French implementing law) to a notice and stay down rule (created by the judges). This interpretation was confirmed in 2011 by the Paris Court of Appeal but overruled by the Cour de cassation on 12 July 2012.

Conceptualising the rights and responsibilities of internet intermediaries in relation to user-generated content: an analysis of European Union law

In an age of increasing media convergence, the issue of intermediary liability for user-generated content is an area of growing legal and ethical concern. The European Union's key liability limiting principles in relation to intermediaries are found in the European E-Commerce Directive and cover not only those providing the means of online transmission but also content supporting platforms, such as social networking websites and mobile content providers. The European Commission's proposed Data Protection Regulation includes the continuation of self-certified safe harbour status in relation to EU/US data transfers. Its potential impact upon the liability of a platform provider in relation to a third party's infringing use of data is as yet unclear. This article's overarching aim is to conceptualise the role of the intermediary and analyse whether the European Union's initial framing of liability principles has survived the pace of technological change and increasing media convergence.

Peer-to-peer privacy violations and ISP liability: data protection in the user-generated web

† Since the adoption of the EU e-Commerce Directive, web hosting has dramatically changed. User-generated content is usually uploaded onto platforms that facilitate and support users in preparing content and making it available. Commercial companies who make a profit by associating advertisements to user-generated materials run such platforms in most cases. † We shall address the legal framework applicable to ISPs managing platforms for user-generated contents. Can they be viewed as mere host providers, even though their activities include not only distributing content, but also indexing it and linking it to advertisements?

Is Youtube a Copyright Infringer? The Liability of Internet Hosting Providers Under Spanish Law

The working paper focuses on the current situation of Spanish legislation on Internet Service Providers liability, particularly dealing with the hosting service. It starts by presenting the Spanish liability system and the more salient peculiarities of the Spanish transposition of the safe harbors laid down in the E-Commerce Directive. These peculiarities relate to the actual knowledge requirement of the hosting safe harbor. The working paper focuses particularly on a judgment handed down by the Supreme Court that hold an open interpretation of actual knowledge, an issue where courts had so far been split. Very few cases have dealt with the actual knowledge and the hosting safe harbors, though the latter was discussed in an interesting scenario involving the worldwide known hosting service YouTube against the private national broadcasting channel Telecinco.

Court of Milan holds video sharing platforms liable for copyright infringement

On January 2011 and May 2011 the Court of Milan released two interesting decisions in Reti Televisive Italiane S.p.A. v Italia On Line S.r.l. (published on 7 June 2011) and Reti Televisive Italiane S.p.A. v Yahoo! Italia S.r.l. and Yahoo! Inc. (published on 9 September 2011). The Court found that the Internet Service Providers Italia On Line and Yahoo! Italia are liable for copyright infringement in connection with the uploading of several videos on their platforms and cannot rely on the hosting provider exemption under the E-Commerce Directive. The two decisions are particularly interesting as the Court of Milan “created” from scratch a new category of Internet Service Provider liability, i.e. the so-called “active hosting” liability.

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

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 to user-generated materials. We shall address the legal framework applicable to ISPs managing platforms for user-generated contents. Can they be viewed as mere host providers, even though their activities include not only distributing content, but also indexing it and linking it to advertisements? As usergenerated-content often concerns third parties, we shall consider whether liability exemptions for ISPs are applicable to data protection violations regarding third parties’ information uploaded by users. We shall address this issue through a comparative analysis of cases, taking into account decisions of the European Court of Justice (ECJ) and of the European Courts of Human Rights (ECtHR), the case law of some EU member states (in particular France and the Netherlands), as well as opinions of national data protection authorities.

Teacher Grading Platforms in Web 2.0 (Der Digitale Pranger – Die Benotung von Lehrern im Zeitalter des Web 2.0)

The internet has brought about many exciting opportunities for an easy and convenient exchange of information worldwide. The number of forums and online portals allowing users to give and discuss their opinions on a wide variety of products is rapidly rising. While at first the focus was on the rating of commercial products or hotels and restaurants, there has recently been an increase in the number of internet platforms dealing with the rating of the personal performances of specific individuals. In Germany, rating platforms regarding the appearances and performances of teaching staff have recently enjoyed great popularity. The new quality of teacher rating (especially with regard to the ubiquitous nature of the internet) let to a number of lawsuits by individuals that have been rated - and slated. They fear that not only their reputation as a teacher but also their personal reputation outside their profession might suffer - considering some rating criteria are not restricted on research and teaching. By using criteria such as “appearance” or “humanity” the rating platforms have become renowned as the modern version of a pillory – a “digital pillory” used to expose teachers to public ridicule, scorn and abuse. Abusive or defamatory comments about teachers are not a new issue as this has formerly been and still is a problem when it comes to teacher rating in pupil magazines. However as the internet allows the anonymous mass publication of these ratings worldwide and not only locally restricted, a new dimension is added. This paper analyses the German case law on the legitimacy of teacher rating platforms and explores whether they infringe personality rights or data protection rules. Additionally, the paper examines whether the service provider of spickmich.de or meinprof.de may benefit from the liability privileges set forth in the E-Commerce Directive if there has been an infringement of the above named rights.

The liability of mobile operators for the content of independent content providers to mobile commerce networks in the European Union: does self-regulation pave the way for new EU rules?

According to Article 12 of the European E-Commerce Directive (on 'mere conduit'), the liability of service intermediaries is limited. Furthermore, Article 15(1) of the e-commerce directive states that the member states may not impose a general duty to monitor the information which the intermediaries transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity. However, the article does not prevent self-regulation or co-regulation for monitoring content providers who do not deliver services that conform to established standards or who otherwise cause problems to end users. On the contrary, according to Article 16, self-regulation or co-regulation are welcomed. In Denmark, major members of the Danish Telecommunications Industries Association and the Consumer Ombudsman recently concluded an agreement whereby the mobile operators are subject to certain rules and liabilities for premium rate services delivered by independent content providers. The present article explains the content of these new rules. In the author's opinion, the rules give better consumer protection and thereby enhance the creation of the internal market for e-commerce activities. Such rules should be considered when designing the future legal regime in the European Union and elsewhere.

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

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.

Liability for Trademark Infringment for Internet Service Providers

At the wake of the millennium and the rise of the internet, legislative action was taken to shelter internet service providers (ISPs) from various forms of legal action. In the turmoil of chartering new and unregulated territory, such a safe harbor was deemed necessary to protect up-starting businesses. Today, these internet actors e.g. Google, Amazon and eBay have grown strong and powerful. Thus, intellectual property holders have started to challenge this privilege in court. Increasingly, owners of famous marks seek liability and damages for direct and indirect trademark infringement in courts around the globe. I focus on liability for ISPs, when a third party sells counterfeit merchandise on the service provider’s site. Courts have reacted differently. Three theoretical approaches have emerged. One, e.g. some courts in France, imposes full liability for willful trademark infringement, if the sale of counterfeit goods is shown. Another, e.g. the German Federal Supreme Court, approaches the question as one of interference with property rights. If ISPs knowingly allow continued sale of counterfeit merchandise they can be found liable for damages. Yet another, e.g. in the United States, approaches the question from the perspective of what the ISP can reasonably be required to do in order to prevent the sale of counterfeit goods on their site. This article compares the approaches above and considers what possible other considerations are relevant in determining ISP liability. It argues that trademark law today, is ill-equipped to handle questions of secondary liability or contributory infringement and concludes that the safe harbor for ISPs, as tailored in the European E-Commerce Directive, should be given a broad reading and the prohibition against imposing a general duty to monitor or actively seek facts in Article 15 remain absolute until the defects are remedied. In response to trademark owners’ legitimate concerns, it further argues that trademark owners should pool their resources, akin to that of Copyright Collective Societies, and form an agency, which, by cooperating with – instead of forcing – ISPs, could more efficiently and legitimately weed out infringing uses on the internet.

Mine host is searching for a ‘neutrality’ principle!

This article examines the Advocate-General's comments on the ‘hosting’ provision in the eCommerce Directive (00/31/EC). He suggests the existence of a ‘neutrality’ principle in respect of intermediary liability, which operates irrespective of an intermediary's knowledge about the legality or otherwise of the hosted content. This article critically examines this suggestion within the broader debate about the role and responsibilities of intermediaries in a cyberspace context.