ISP Liability Research Articles

Uwarunkowania prawne odpowiedzialności za odesłania internetowe w Niemczech

This article attempts to present the legal framework of liability for Hyperlinks in the German legal system. With the 1997 Teleservices act, this country was Europe’s first to adopt a complex regulation of electronic communication, including a special liability regime for Intermediary Service Providers, applicable horizontally to all types of legal claims. Still, even after a total revision of the law in 2001, required by the process of implementation of the 2000/31/ EC E-commerce Directive, and after a, maybe less revolutionary, transformation of the Teleservices act into the Telemedia act in 2007, which left the ISP liability section of the law unchanged, the problem of liability for hyperlinks has not been regulated directly. This doesn’t mean however, that the issue of liability of persons inserting hyperlinks into their web services poses a problem for German courts. This may have been the case under the original 1997 Teleservices act, when sometimes even very similar cases have been adjudicated differently by different courts. Paradoxically during that time the special ISP liability regime of the law was widely believed to be applicable to hyperlinks. The situation changed significantly after the revision in 2001, as the lawmaker, the doctrine and the judiciary unanimously stated the revised wording of the law, leaves no room for its direct application to hyperlinks. Worth mentioning here is the minority opinion, represented a.o. by Ulrich Sieber, claiming that, for certain types of hyperlinks (especially deep links provided automatically by search engines), an per anlogiam application of the Teleservices act may be possible. Nevertheless, with the new law the question as how to handle cases of alleged liability of hyperlink providers was entirely up to the court’s interpretation of general legal provisions. The practice of legal assessment hyperlinks, or the practice of inserting thereof into web services, has been widely developed and confirmed especially by German jurisprudence. The Federal Supreme Tribunal in its 2003 “Paperboy” ruling confirmed the general admissibility of linking as such, both in form of simple links and deep-links. Later on, in 2004, its “Schöner Wetten“ judgment the Tribunal introduced a procedure for testing particular cases of linking. According to the Tribunal, when assessing the legality of hyperlinks, first to consider is the possibility of so called “appropriation” (sich–zu–eigen–machen) of 3rd party information. Originating from press law, this legal institute was incorporated into the 1997 Teleservices act. After revision of the law in 2001 the institute of appropriation wasn’t transferred into the new wording of the law, nevertheless it continued to be applied by courts. With regard to hyperlinks, such “appropriation” of third party information may by assumed in situations when the ISP designs a hiperlink in a manner which may cause the average user to wrongly believe the information, the user is being directed to, was provided by the same ISP. This may often be the cas, when ISP’s own information is visually combined with 3rd party information, accessible by link (e.g. by using frames or in-line links). In such cases the ISP should be subject to liability just as if he were the content provider of such information. In cases of civil liability, when the test for “appropriation” of information falls out negative, courts should continue the assessment with regard to the possibility of “disturber liability” (Störerhaftung) of the ISP, according to section 1004 of the German Civil Code. According to the Federal Supreme Tribunal this type of liability prerequisites the existence of ISP’s obligation to monitor the information. By assessing if such obligation exists, the Tribunal noted, several factors need to be considered, which are: (a) the general context in which the hyperlink is used; (b) the purpose of the link, (c) the awareness of the ISP as to the illegality of the information directed to; and (d) if the ISP can be reasonably expected to recognize such illegality. The Tribunal also emphasized the importance of the time of linking, noting, that the ISP isn’t obliged to monitor a hyperlink once inserted, thus he can’t be made liable if a previously legal information (targeted by the link) has afterwards been changed.

EU Directive on Copyright in the Digital Single Market and ISP Liability: What's Next at International Level?

The recent approval of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) by the European Union has caused a considerable storm among the internet users, scholars, practitioners and industries. Particularly controversial was the original obligation of ISPs to filter the content upload by platforms users with the purpose of avoiding copyright infringements in the draft of Article 13. For this reason, the Directive has been even named the “death of the internet”. The final text (renumbered in Art. 17) provides for no general monitoring obligation, however, the ISPs will likely be required to implement filtering measures to avoid liability for unauthorized acts of communication to the public, including making available to the public, of copyright-protected works. Therefore, the DSM Directive has introduced a European regime of ISPs liability that stands in contrast with the existing laws in countries outside the EU. This lack of harmonization will have a negative impact in the ISPs and will eventually lead to a slowdown of internet at a global scale. In order to limit these consequences, this Article proposes the adoption of an International Treaty in the WIPO that sets forth minimum standards on the role of the ISPs, the liability of the ISPs and safe harbors. The proposed Treaty gives freedom to States to require or not filtering obligations. Any filtering requirements should be specific, limited, subject to human review, and should not impose substantial costs on ISPs.

The e-Commerce Directive and GDPR: Towards Convergence of Legal Regimes in the Algorithmic Society?

The legal regimes of online intermediaries’ liability and data protection have been conceived on parallel tracks. Whereas the Data Protection Directive could not exclude from its scope of application the e-Commerce Directive due to chronological reasons, the latter expressly clarified that its scope does not include data protection matters. The rise of the algorithmic society has blurred this traditional gap. From a merely passive role, new online intermediaries such as search engines and social networks have acquired an increasingly active role in managing online contents. At the same time, their role in deciding how to process personal data has transformed these actors from data processors to controllers. This evolving framework has led to the convergence of the parallel tracks which have started to overlap. In particular, the ECJ decision in Google Spain and the Italian Google Vivi Down saga have shown the intersections between the two regimes. The adoption of the General Data Protection Regulation (GDPR) has contributed to reducing the gap between the regimes of data protection and ISP liability. The GDPR has clarified that the application of the new Regulation should not affect the rules provided for by the e-Commerce Directive, in particular, those regarding ISP’s liability. The result could be a potential overlap of two layers which, until the adoption of the GDPR, were conceived from two different perspectives.

Aware Thus Accountable: The Court of Rome on ISP Liability and Copyright Infringement via Hyperlinking

In February 2019, the Court of Rome issued an important decision in a controversy between RTI (Mediaset) and Facebook – due to the publication of links to contents under RTI copyright, within a Facebook group. In particular, the Court condemned copyright infringement via mere hyperlinking through a social network, for the first time in Italy. Starting from the case at hand, and against the backdrop of the upcoming EU Copyright Directive, the Author critically discusses the trends on copyright infringement via hyperlinking and on the related hosting provider liability within the EU.

A Constitutional-Driven Change of Heart: ISP Liability and Artificial Intelligence in the Digital Single Market

A Constitutional-Driven Change of Heart: ISP Liability and Artificial Intelligence in the Digital Single Market

First things first: German Federal High Court provides guidance on ISP liability in online copyright infringement cases

In two decisions of 26 November 2015, the German Federal High Court held that internet service providers can generally be held liable for illegal content disseminated by third parties through their services, with the caveat that claimants would first need to exhaust all reasonable measures to enforce their rights against the primary infringers.

UK: ISP Liability for TradeMark Infringement by Third Party

UK: ISP Liability for TradeMark Infringement by Third Party

EL RÉGIMEN DE EXENCIÓN DE RESPONSABILIDAD DE LOS ISP POR INFRACCIONES DE PROPIEDAD INTELECTUAL EN EL TLC COLOMBIAESTADOS UNIDOS: UNA EXPLICACIÓN A PARTIR DE LA DMCA Y LA DCE

El presente artículo tiene como objetivo examinar los regímenes deexención de responsabilidad de los prestadores de servicios de internet(ISP, por sus siglas en inglés) que desde hace poco ofrece el derecho comparadopara luego visualizar en el régimen del TLC Colombia-EstadosUnidos los aspectos fundamentales que en esta regulación se ponen máso menos en línea con los regímenes examinados, de lo que se desprendela influencia foránea para una reglamentación en Colombia sobre lasposibilidades de exención de responsabilidad de los ISP y el espacioque resta para su responsabilidad a la luz de las normas generales de laresponsabilidad civil.

Freedom of Expression On-Line

This article analyses the contents of the universal right to free expression in the context of its applicability on-line. It starts off with a brief recapitulation of the origin, definition and interpretation of the right to free expression, derived from article 19 UDHR. It then goes on to name the three composite rights (the right to hold, impart and receive information and ideas) and details the limitations that may be put by states upon the individual exercise of those freedoms. States' duty to protect free expression is than identified as their negative obligation to refrain from infringement as well as a positive one, to guarantee that human rights are “protected, respected and remedied” within national legal systems. Then the role of Internet Service Providers is introduced as the gate keepers of free expression in the information society. Different schemes for national ISP liability mechanisms are presented: the notice-and-take down procedure as well as Internet content filtering (preventive censorship). The paper goes on to criticize both mechanisms as enabling ISPs too much freedom in deciding upon the shape and scope of individuals' right to impart and receive information.

Quelling P2P Infringement Private American Harbours or Public French Graduations?

Two basic legal models have evolved to tackle the problem of unlawful P2P distribution: safe harbour and graduated response. This article will discuss the two models, with a focus on the American safe harbour regime and the French graduated response regime. Also considered is the open question of what will occur in Australia in the aftermath of the High Court’s denial of ISP liability in Roadshow Films v iiNet.

New Russian Legislation on ISP Liability and Copyright Enforcement

In the course of summer 2013, the new Russian legislation on ISP liability and copyright enforcement was adopted and came into force. This report will (1) explain the major components of the new law, (2) outline the reactions to it, and (3) point to expected future developments.

ECtHR rules on liability of ISPs as a restriction of freedom of speech

The European Court of Human Rights (ECtHR) in Strasbourg handed down its first case concerning the liability of intermediaries. A ruling of the Estonian Supreme Court that imposed broad liability and a general monitoring obligation upon an internet news portal vis-a-vis third party comments made on its website under one of the news items was found by the ECtHR to be proportionate and justified interference with the freedom of expression.

EU Policy on Net Neutrality - Out of Neutral, But Driving in which Direction?

This paper provides a status report on discussions in the EU on net neutrality relating to four issues: regulation of traffic management practices, prevention of piracy, differential charging by operators, and ISP liability for content.

The Variety of ISP Liability in the EU Member States

The Variety of ISP Liability in the EU Member States

ISP liability for end-user copyright infringements: the High Court decision in Roadshow Films v iiNet

In Roadshow Films v iiNet, the High Court unanimously held that iiNet was not liable for copyright infringements committed by its subscribers by means of the BitTorrent peer-to-peer file-sharing system. While the two judgments delivered by the High Court have clarified the extent to which ISPs may be liable for end-user infringements, they have created considerable legal uncertainty about authorisation liability, which is the main Australian doctrine under which a person may be found liable for the infringing conduct of another person. This article explains and analyses the two judgments delivered by the High Court in iiNet, focussing on the implications of the decision for ISPs, and for authorisation liability more generally.

Quelling P2P infringement – private American harbours or public French graduations?

Two basic legal models have evolved to tackle the problem of unlawful P2P distribution: safe harbour and graduated response. This article will discuss the two models, with a focus on the American safe harbour regime and the French graduated response regime. Also considered is the open question of what will occur in Australia in the aftermath of the High Court?s denial of ISP liability in Roadshow Films v iiNet.

Australia's High Court rules on ISP's liability for user infringements

Australia's High Court rules on ISP's liability for user infringements

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?

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.

ACTA's Digital Chapter: remaining concerns and what can be done

The recently adopted Anti-Counterfeiting Trade Agreement (ACTA), and especially its ‘Digital Chapter’, has provoked heated debates and faced strong criticism from both academia and society in general. Although the final text of the Digital Chapter appears to have dropped some of the more controversial proposed provisions such as a ‘three-strike rule’, some problems remain. This article looks at these: whether ACTA establishes criminal liability for private file-sharers; what the ISP liability provisions mean; what the encouragement of ‘cooperative efforts within the business community’ might lead to; and to what extent the provisions on technological measures set WIPO-plus standards.