Liability Exemption Research Articles

Common Ownership and Startup Growth

Many startups are commonly-held by the same venture capital (VC) investors. We exploit the staggered introduction of liability exemptions when investors hold stakes in conflicting business opportunities as a shock to common ownership. We find increases in common ownership and directors serving on rivals' boards after the law changes. Despite the potential for rent-extraction, commonly-held startups benefit by raising more capital through more investment rounds. Moreover, they are less likely to fail and exit more successfully through IPOs or acquisitions by another commonly-held startup. These successful startup outcomes are linked to VC directors serving on other startup boards.

Правові аспекти застосування помилування за законодавством України

Стаття присвячена аналізу сучасного стану правового регулювання застосування помилування до засуджених в Україні. Чинні нормативно - правові джерела які регламентують зазначений правовий інститут, не позбавлені недоліків. Предметом дослідження є проблеми строків, після відбуття яких можливо застосування помилування до осіб, засуджених вперше та до осіб раніше судимих, відшкодування, особами відносно яких застосовано помилування, спричиненої кримінальним правопорушенням шкоди, застосування помилування стосовно осіб, які скоїли умисні злочини під час випробувального терміну при умовному засудженні, відносно яких раніше застосовувалось помилування, амністія, умовно дострокове звільнення від відбуття покарання або заміна його на більш м`яке. Законодавство України про кримінальну відповідальність забезпечує правовий захист прав і свобод людини і громадянина, власності, громадського порядку та громадської безпеки, довкілля, конституційного ладу України від злочинних посягань; забезпечення миру та безпеки людства та запобігання злочинності. Для виконання цього завдання Кримінальний кодекс України визначає, які суспільно небезпечні діяння є злочинами та які покарання повинні застосовуватися до винних осіб. У той же час питання застосування механізмів звільнення від кримінальної відповідальності залишається актуальним для чинного законодавства про кримінальну відповідальність. Помилування займає чільне місце в законодавстві України, в системі видів звільнення від кримінальної відповідальності. Тому в період політичної реформи в Україні проблема ефективності застосування інституту помилування до ув'язнених в Україні є досить актуальною. Актуальність порушених у статті питань обумовлена необхідністю законодавчого регулювання деяких положень щодо застосування помилувань до засуджених в Україні. У статті проаналізовано сучасний стан правового регулювання використання помилувань для ув'язнених в Україні. Зазначається, що чинні нормативно-правові джерела, що регулюють інститут застосування помилувань до ув'язнених в Україні, не позбавлені прогалин. Предметом дослідження є проблеми строків, після яких заява про помилування засудженим може бути відшкодована, особам, щодо яких застосовано помилування, компенсація, спричинена кримінальним правопорушенням, можливість застосування помилування до осіб, які вчиняли навмисне злочини під час випробування, із умовно-достроковим покаранням раніше застосовували помилування, амністію, умовно-дострокове звільнення або заміни більш м'яким, раніше судимим. Автори статті також надають необхідні рекомендації щодо вдосконалення правового регулювання використання помилувань для засуджених в Україні.

Ancillary Copyright and Liability of Intermediaries in the EU Directive Proposal on Copyright

Ancillary Copyright and Liability of Intermediaries in the EU Directive Proposal on Copyright

Privatised enforcement and the right to freedom of expression in a world confronted with terrorism propaganda online

The purpose of this paper is to explore the risks of privatised enforcement in the field of terrorism propaganda, stemming from the EU Code of conduct on countering illegal hate speech online. By shedding light on this Code, the author argues that implementation of it may undermine the rule of law and give rise to private censorship. In order to outweigh these risks, IT companies should improve their transparency, especially towards users whose content have been affected. Where automated means are used, the companies should always have in place some form of human intervention in order to contextualise posts. At the EU level, the Commission should provide IT companies with clearer guidelines regarding their liability exemption under the e-Commerce Directive. This would help prevent a race-to-the bottom where intermediaries choose to interpret and apply the most stringent national laws in order to secure at utmost their liability. The paper further articulates on the fine line that exists between ‘terrorist content’ and ‘illegal hate speech’ and the need for more detailed definitions.

On domain registries and unlawful website content

The link of lawful domain names to unlawful content is a phenomenon that has not been very topical until recently. Traditionally, domain registries have been off the radar of content-related debates. Enforcement efforts, public discourse and academic research have focused on other intermediaries such as Internet access service providers, hosting platforms, and websites that link to content. This article shows, however, that the (secondary) liability of domain registries and registrars, and more specifically country code top-level domain (ccTLD) registries for website content, has been tested in several EU Member States in recent years. The article investigates tendencies in the national lower-court jurisprudence and explores to what extent the liability exemption regime of the E-Commerce Directive applies to domain registries. The analysis concludes that whereas domain registries can be read under the exemptions in a teleological interpretation, more clarity is desirable.

Safe harbours in deep waters: a new emerging liability regime for Internet intermediaries in the Digital Single Market

Online intermediaries, often categorised as the gatekeepers of information, have become major protagonists in a variety of policy and legislative actions within the EU Digital Single Market. These initiatives endeavour to tackle illegal content online by imposing enhanced responsibility rules. The emerging scheme undertakes to nevertheless maintain the safe harbour liability exemption under the E-Commerce Directive. In this article we argue that whether that is really the case remains to be seen, in particular with a view to the proposal for a new directive on copyright in the Digital Single Market, the proposal to amend the Audio-visual Media Services Directive and the Commission’s guidance on enforcement of IPRs. This article strives to understand how the new set of obligations is accommodated in the realm of existing rights and duties and whether the boundaries of the safe harbour are blurred by virtue of these recent legislative initiatives.

Safe Harbours in Deep Waters: A New Emerging Liability Regime for Internet Intermediaries in the Digital Single Market

Online intermediaries, often categorised as the gatekeepers of information, have become major protagonists in a variety of policy and legislative actions within the EU Digital Single Market. These initiatives endeavour to tackle illegal content online by imposing enhanced responsibility rules. The emerging scheme undertakes to nevertheless maintain the safe harbour liability exemption under the E-Commerce Directive. In this article we argue that whether that is really the case remains to be seen, in particular with a view to the proposal for a new directive on copyright in the Digital Single Market, the proposal to amend the Audio-visual Media Services Directive and the Commission’s guidance on enforcement of IPRs. This article strives to understand how the new set of obligations is accommodated in the realm of existing rights and duties and whether the boundaries of the safe harbour are blurred by virtue of these recent legislative initiatives.

The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking

I. INTRODUCTIONOver past few years, intellectual property (IP) enforcement by ordering Internet access providers to block infringing websites has been rapidly evolving in Europe. The practice is increasing since going after direct infringers has proven to be heavy-handed, disproportionate, and ineffective,1 whereas targeting website operators is not an easy task either, as these often run their services from another jurisdiction,2 easily change location3 or conceal identity.4 As a result, injunctions against Internet access providers often remain most efficient option left to right-holders.in European union, legal basis of such injunctions rests on Article 8(3) InfoSoc.5 According to this article, States ensure that right-holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. An almost identical provision, but with regards to all intellectual property rights, is enshrined in third sentence of Article 11 of Enforcement Directive.6 in addition, Article 12(3) of E-Commerce Directive7 provides that so-called mere conduit liability exemption that would normally apply to internet access providers8 shall not affect possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring service provider to terminate or prevent an infringement. Analogously, Recital 45 of ECommerce Directive states following:The limitations of liability of intermediary service providers established in this Directive do not affect possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring termination or prevention of any infringement, including removal of illegal information or disabling of access to it.9At same time, Article 15 of E-Commerce prohibits general monitoring obligation.10Even though authorized in principle by European legislator, blocking injunctions have also proven problematic with regard to fundamental rights enshrined in European legal order, such as users' right of access to information and Internet service providers' ability to freely conduct their business. As noted by European Commission in its 2007 impact assessment, the adoption of blocking measures necessarily implies a restriction of human rights . . . and therefore, it can only be imposed by law, subject to principle of proportionality, with respect to legitimate aims pursued and to their necessity in a democratic society . . . .11 A uniform approach towards achieving proportionality in website blocking is, however, currently lacking in Europe. inasmuch as InfoSoc Directive left [t]he conditions and modalities relating to such injunctions . . . to national law of Member States,12 blocking practices vary significantly across Europe. This generates further discrepancies in case law, leav[ing] much to be desired in terms of human rights13 and overall level of harmonization.14As a response to this situation of legal uncertainty, two major European courts - Court of Justice of European Union (CJEU) and European Court of Human Rights (ECtHR) - have recently provided some guidance on fundamental-rights balancing in cases of website blocking on grounds of copyright infringement.15 The point of departure has been two landmark decisions of these courts, which thus need to be briefly presented: so-called UPC Telekabel judgment of CJEU and Akdeniz v. Turkey decision of ECtHR.UPC TelekabelThe case before CJEU, UPC Telekabel,16 involved a major Austrian internet access provider that was ordered, at request of two film production companies, to block access of its customers to website kino.to, offering films of companies for streaming or download without right-holders' consent. …

On Domain Registries and Website Content – Shift in Intermediaries' Role in Light of Unlawful Content or Just Another Brick in the Wall?

The link of lawful domain names to unlawful content is a phenomenon that has not been very topical until recently. Traditionally, domain registries have been off the radar of content-related debates. Enforcement efforts, public discourse and academic research have focused on other intermediaries such as Internet access service providers, hosting platforms, and websites that link to content. This article shows that in recent years, however, that the (secondary) liability of domain registries and registrars, and more specifically country code top-level domain (ccTLD) registries for website content, has been tested in several EU Member States. The article investigates tendencies in the national lower-court jurisprudence and explores to what extent the liability exemption regime of the E-Commerce Directive applies to domain registries. The analysis concludes that whereas domain registries can be read under the exemptions in a teleological interpretation, more clarity is desirable.

La réforme du droit de la responsabilité civile : regards croisés vietnamo-français

In both France and Vietnam, the reform of civil liability law is part of the reform of civil law in general. In Vietnam, placed at the heart of the reform, the law on liability experienced significant changes on several points, such as the role of fault, the conditions engaging liability, causes of exemption of liability, the duty to mitigate damages, types of damages, the principle of reparation, victime behaviour ... In a comparative approach, we will compare the Vietnamese solutions of 2015 with the proposals in the draft reform of the law on civil liability made public for consultation by the Keeper of the Seals Jean-Jacques Urvoas, on Mars 13, 2017. The subjects studied will be presented in two parts dealing with the novelties linking the two responsibilities and the novelties specific to the extracontractual responsibility.

Should Alibaba be liable for the counterfeiting activities of online stores? On the secondary liability of internet service providers in Chinese trade mark, copyright and tort law

According to Chinese copyright law, internet service providers (ISPs) are jointly liable for the piracy of internet service users (ISUs) if they are aware of or have reason to know the latter's illegal acts, while the Trade Mark Law imposes joint liability on ISPs only if it is aware of the infringing acts of ISUs. As for the tort law, which is of general applicability, it provides that ISPs are jointly liable if they know of an ISU's tortious behaviour, but what constitutes this knowledge is quite controversial. A transversal study between these three laws shows that the term ‘have reason to know’ or ‘know’ in related rules should be interpreted as encompassing constructive knowledge and negligence, in order to conform with Chinese judicial practice. The divergence between these laws, other legal texts and judicial practice has given rise to disorder in the interpretation and application of Chinese law, and has broadened the scope of applicability of liability exemption clauses. The fundamental conditions for the determination of an ISP's liability are twofold: the ISP must have actual knowledge or constructive knowledge of the infringing act, or be negligent regarding the facts or circumstances related to the ISU's tort; and the illegal nature of the ISU's behaviour must be obvious or easy to recognize by a reasonably diligent person. The negligence of an ISP should be identified by the lack of appropriate and effective measures taken to prevent an ISU's torts. A general duty of care for ISPs has been introduced and developed by Chinese courts despite the fact that ISPs are generally regarded as not being subject to a general obligation to monitor the activities of ISUs.

Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. In this context, this paper would like to explain the recent developments in intermediary liability theory and policy within a broader move towards private ordering online. Public enforcement lacking technical knowledge and resources to address an unprecedented challenge in terms of global human semiotic behaviour would coactively outsource enforcement online to private parties. Online intermediaries’ governance would move away from a well-established utilitarian approach and toward a moral approach by rejecting negligence-based intermediary liability arrangements. Miscellaneous policy tools—such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies, private DNS content regulation, online search manipulation, or administrative enforcement—might reflect this change in perspective. In particular, governments—and interested third-parties such as intellectual property rightholders—try to coerce online intermediaries into implementing these policy strategies through voluntary measures and self-regulation, in addition to validly enacted obligations. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Further, enforcement would be looking once again for an ‘answer to the machine in the machine’. By enlisting online intermediaries as watchdogs, governments would de facto delegate online enforcement to algorithmic tools. Due process and fundamental guarantees get mauled by technological enforcement, curbing fair uses of content online and silencing speech according to the mainstream ethical discourse.

Can Drought be considered a Case of Force Majeure That Can Due to Exemption from Liability for the Debtor?

Provided that the prejudice is determined by a case of force majeure, the liability of debtor arising from the unfulfilled obligations is exempted. Force majeure has always an external nature and is defined as an unpredictable, unavoidable and unsurpassable event. The judicial practice indicates as force majeure events natural calamities or other catastrophes. Such events, however, cannot be considered as absolute events of force majeure and they should be analyzed in each individual case, evaluating if they meet or not the requirements of such event that can exonerate the debtor from the liability. The signatory parties of the contract can decide under a deed that certain events will be considered cases of force majeure. Proving an event of force majeure does not result into the exemption of liability if the debtor was put in delay as regards the fulfillment of the obligations undertaken by the contract and if the debtor has undertaken the liability as per a contractual convention or clause. In our opinion, the contracting parties should protect themselves by stipulating in their contract provisions regarding the details concerning the events of force majeure, but as well on the measures to be taken by the parties under such circumstances (immediate notifications, emergency measures implemented to mitigate the effects of the force majeure and losses, documents from the relevant authorities).

Development in Aviation Product Liability and Its Implication to China

The victims of aviation accidents often bring a case to litigation on the account of product defect under the aviation product liability, other than transportation liability, in order to obtain highamount compensation. Aviation product liability has a strong international character, and a combination of both transportation and product liability. In judicial practice, this kind of liability is related to a lot of confusing complexities: legal relationship, legal subject, the principle of liability, exemption of liability, jurisdiction and applicable law. With the background of China's strategy on large aircrafts and growing consumer protection, China should learn from the mature legislation and judicial practice of European and American aviation product liability. The amendment of Civil Aviation Law, legislation of specialized aviation industrial promotion law and the improvement of aviation product liability system will prevent China becoming the third largest target for aviation product liability litigation after the United States and Europe.

Holey cap! CJEU drills (yet) another hole in the e-Commerce Directive’s safe harbours

The E-Commerce Directive is going through a hard time. Numerous policy initiatives and judgements of the Court are exposing its provisions to a real stress test. The goal of this paper is not summarize or evaluate in general this trend, but to show how a single decision of the CJEU with few open issues can lead to destabilization of the system. The center-stage of this brief article is the Court’s recent decision in Mc Fadden v. Sony Germany and its short-term and long-term consequences for the future of safe harbours, their scope and IP enforcement. The paper argues that by allowing the exclusion of pre-trial costs and litigation costs from the liability exemptions, the Court has drilled yet another hole in the system of safe harbours. It also highlights that the decision to permit password-locking as an enforcement practice is a short-sighted policy choice that will require number of clarifications. Last but not least, it is argued that a root-cause of the rejection of Advocate General’s proposition to outlaw password-locking is the Court’s treatment of the fundamental rights as the only framework of reference for IP enforcement. This causes that also constructive and well-explained arguments of good innovation policy to fall often on deaf ears.

The Allocation of Burden of Proof within the Framework of the Litigation of Traffic Accident in China

According to the widely accepted theory of burden of proof, the allocation of evidential burden depends on the texts of the legal norms. The system of liability of road traffic accidents in China is based on the Article 76 of current Road Traffic Safety Law, which includes the establishment, exemption and reduction of the tort liability. Systematic investigation of burden of proof in road traffic accident litigation also involves those three aspects. Relying on the text-analysis can we clarify the required elements of liability establishment, exemption and reduction, then answering the question that which party is responsible for the proof of certain facts.

Ograničenja odgovornosti za štetu zbog povrede privrednih ugovora - iz perspektive srpskog Zakona o obligacionim odnosima

This paper aims to analyse the rules concerning the limitations on liability for the loss arising out of business contracts from the perspective of the principle of full compensation as the general principle of the Law on Obligations (Law of Contracts and Torts) and its limitations by way of the foreseeability rule. Special attention is given to the rules of the Law concerning the proportionate reduction of damages in cases when the aggrieved party contributed to the occurrence or increase of the loss, and when the aggrieved party, as a result of the breach of contract, received certain benefit in addition to the loss suffered. Given that contractual liability may apply only if no circumstances that exclude it have occurred, the paper provides a careful analysis of the rules of the Law relating to the exemption of liability, as well as contractual clauses on the exclusion and limitation of liability in terms of their validity and legal effects. The analysis of these rules is followed by their general evaluation in the final considerations.

Sea carrier’s exemption of liability for navigational error: the Norwegian perspective

ABSTRACTSection 276 of the Norwegian Maritime Code (here in after referred to as NMC) exempts the sea carrier from the liability for damages arising due to the navigational errors. However, there are scenarios where a sea carrier is devoid of invoking this exemption. This paper discusses the concept of sea carriers’ exoneration of liability caused due to nautical faults under international maritime conventions, and the position adopted under NMC( § 276).

La responsabilidad penal de las personas jurídicas: un estudio comparado entre España y el Perú

This paper studies the criminal liability of legal persons, which has suffered a deep reform with the organic law 1/2015, after being introduced in Spain in 2010. This reform has brought important modifications and news, as the creation of an exemption of liability through the adoption of compliance programs, which supposes a change in the so called model of transfer of liability, that existed before. Parallel to this transformation in the Spanish criminal code, in Peru recently the law 30424 has come into forth, which contents a corporate liability model, very similar to the one foreseen in Spain. Both models of liability and the possibility of its exemption raise doubts about if they really tried to penalize legal persons or not.

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.