Study on the Liability of Internet Intermediaries

Общество и инновации

Today Internet has been serving not only to exchange information, but it is a place of offering different services. Hosting service providers can be categorized as one type of online intermediaries, which provide a huge amount of information through their websites. However, they do not know which information is illegal until someone notifies them about illegal content on their website. In another word, hosting service providers should have “actual knowledge” to take action against illegal content. If they do not have actual knowledge, they should not be liable for illegal content, which they host. This article explains how notice and action procedure works in the EU and shows some main issues of its legal framework. In first section, it analyzes the different ways of interpretation of “actual knowledge” and its horizontal application to all illegal contents. Then it discusses how fast illegal contents should be removed or disabled regarding with different types of illegal contents. ...

Annales Universitatis Scientiarum Budapestinensis de Rolando Eötvös Nominatae. Sectio iuridica

Section 4 of the 2000 Directive on electronic commerce (ECD) established significant regulations concerning the liability of intermediary service providers regarding illegal content. However, in the past twenty years it has become apparent that its details are not adequately developed. The European Court of Human Rights (ECtHR), in accordance with the European Convention on Human Rights (ECHR), performs significant legislative action in this field. Its rulings touch upon the active or passive role of service providers, issues regarding the operation of the notice-and-takedown system, and the legal grounds of due notice. The present study examines the practices and role of the European Court of Human Rights, as this organisation has significantly contributed to the new set of proposals on digital regulation (to be introduced in 2020) moving in a direction more suitable to meet present-day demands concerning liability.

This article aims to critically analyse the two proposals for Directives that the European Commission launched on 9 December 2015: the Online Sales Directive and the Digital Content Directive. Both proposals are part of the Digital Single Market Strategy for Europe. Their main objective is to eliminate one of the barriers to cross-border trade: differences in contract law between Member States. This article is structured in two parts, which will be published separately. The first part of the article aims at answering the question of whether the new rules will attain their objective of reducing the complexity of the legal framework applicable to consumer protection in e-commerce. Section 2 briefly introduces the purpose of the Directives and their precedents. Sections 3 and 4 discuss, with regard to each Directive, what kind of contracts are covered by the Directives, how these contracts are currently regulated in Europe and what the implications are of the new rules, if adopted, for the contract law of Member States. It can be argued that whereas the Online Sales Directive will contribute to increasing the fragmentation of the regulation on consumer sales, the Digital Content Directive will address the existing legal lacunae at the EU level concerning certain aspects of contracts for the supply of digital content. Rosa Milà Rafel

The present study is focused on article 11 and article 13 of the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market. The study underlines the inefficiency, from both a legal and economic perspective, of the measures held by the EU Commission, considering the purposes of these interventions: • in the press sector, introducing a new right to facilitate online licensing for publications, investment recovery and respect for rights; • as for online platforms, encouraging greater transparency on the revenues generated from the use of content protected by copyright in the digital environment, with measures aimed at establishing more balanced contractual relationships between, on the one side, authors and, on the other side, users and subjects who exploit the copyrighted works. Article 11 The main purpose of article 11 is to require Member States to grant to press publishers the same rights as those set out in article 2 and Article 3, par. 2, of the InfoSoc directive, in case of digital use of their journalistic publications (so-called ancillary copyright). The duration of these rights is twenty years, allowing publishers to check the availability of their works to the public. In other words, whenever a subject uses parts of a journalistic article (including the so-called snippets) he is expected to pay the above ancillary rights to publishers. a) Poor effectiveness of the measure There is no evidence that shows that the investments supported by publishers could be remunerated by the introduction of a new related right. Similar measures were already introduced in Germany, in 2013, and in Spain, in 2014, leading to the closure of news aggregation services (Google News, in Spain) or to the deindexation of copyrighted contents (determining the decrease of the web traffic on the related web pages). The Staff Working Document Impact Assessment also confirms that “None of these two recent ‘ancillary rights’ solutions at national level have proven effective to address publishers' problems so far, in particular as they have not resulted in increased revenues for publishers from the major online service providers”. b) Access and pluralism of information The Commission's proposal could have the effect of restricting access to certain contents, which would be de-indexed. Likewise, the introduction of a new related right might shrink the number of information aggregators, used not only by users, but also by researchers and journalists. It should be also took into account that search engines could legitimately choose to take up exclusively the news from newspapers with which they have contractual relationships, with the detriment of other newspapers, negatively affecting information pluralism. An indirect, but also unfavourable, effect would also be seen in the activities of extraction and combination of large amounts of data and information (so-called big data journalism). c) Excessive scope and circumvention of new rights The duration of the rights (20 years) is excessive if compared to the commercial exploitation of journalistic publications, negatively affecting the use of these sources for historical purposes and scientific research. Furthermore, these rights are due irrespective of a request by the rights holders. During the consultation, many journalistic companies have expressed their opposition to the introduction of an ancillary copyright. Likewise, the new rights would also apply to content issued with open licenses (such as, for instance, creative commons). Finally, online news services could limit themselves to aggregating content created by operators established in third countries (for example, South Americans for news already Lastly, online news services could aggregate exclusively content created by operators established in third countries (for example, South American operators for journalistic news relating to Spain), who are out of the material scope of the directive, with a clear competitive harm to European companies. Article 13 According to the purposes of the EU Commission, the introduction of article 13 meets the need to fairly the value generated by sharing works by online platforms. According to the sources mentioned by the EU Commission, in fact, these platforms would generate revenues amounting to US$634 million (one dollar per user), compared to US$2 billion ($ 18 for each user) earned by the managers of the platforms themselves, through advertising investments or subscription fees. In addition to the above mentioned license agreements, article 13 holds the adoption of effective content recognition technologies. Even this measure seems disproportionate and ineffective and does not provide an adequate solution to the issues raised by the Commission. a) Application of article 13 Article. 13 should apply to “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users”. The reference to “large amounts of works or other subject-matter” is absolutely generic and does not specify the subjects to whom article 13 concretely would be applied. This causes a situation of great uncertainty, especially for new operators and innovative service providers. b) Calculation of the value gap The data reported by the Commission are contradicted by other independent researches. These researches show that, even if right holders complain about a “value gap”, there is a noticeable increase in revenues generated by the entertainment industry (music, film industry, etc.) and by copyright collecting societies. c) Filtering and general surveillance The measure that the Commission would introduce is clearly in contrast with both article15 of the e-commerce directive, which prohibits a general monitoring obligation on ISPs, and the recent decisions of the Court of Justice, which stated that the use of systems “for filtering and blocking electronic communications is inconsistent with EU law”, and namely with data protection law and freedom of enterprise. On the contrary, the mechanism envisaged by the proposal directive calls for a preventive action of the platform operators, who are driven to monitor and remove potentially (but not necessarily) illegal contents uploaded by users, with a limitation of the freedom of expression. d) Anti-competitive effects Article 13 would apply exclusively to platform operators who make available to the public wide repertoires (or “large amounts of works”), with the exclusion of the other operators. The latest version of the proposal dismissed by the Commission provides for an exemption of liability for big players, provided that the conditions set by the article 13 are met. However, this exemption does not apply to the other operators, although they still an act of communication or making available to the public, even if distributing more limited repertoires. This choice triggers a competitive distortion between big and small operators, since the big players could benefit from the exemption from liability, while the latters would not be covered by the protection held by article 13. Ultimately, the above mentioned measures seem to be ineffective and do not comply with the needs expressed by the Commission and by the copyright holders. Therefore, a radical rethinking of article 11 and article 13 is necessary, taking into account the EU legislative framework and the impact that these measures might have on the reference markets.

Eastern Journal of European Studies

This article aims to critically analyse the two proposals for Directives that the European Commission launched on 9 December 2015: the Online Sales Directive and the Digital Content Directive. Both proposals are part of the Digital Single Market Strategy for Europe. Their main objective is to eliminate one of the barriers to cross-border trade: differences in contract law between Member States. This article is structured in two parts, published separately. This second part of the article highlights the most significant rules governing conformity and the remedies for lack of such conformity with regard to each proposed Directive. It also raises questions as to the justification of their particular format. It can be concluded that the Online Sales Directive introduces some improvements and clarifications to the Consumer Sales Directive that will either increase or maintain the current level of consumer protection in most Member States. Nevertheless, in some Member States the Online Sales Directive will undoubtedly lead to a reduction in the existing level of protection. The Digital Content Directive rules on conformity and the remedies for lack of conformity of digital content also raise some significant issues. It can be argued that some rules need to be clarified or revised. They include the rule under which contractual terms take precedence over objective criteria when assessing the conformity of digital content and the provision on damages that limits the consumer's right to seek compensation for damages incurred in their digital environment.

SSRN Electronic Journal

2 and Germany 3) have submitted questions seeking clarification on aspects that are essential to the guarantee of fundamental rights in the EU and to the future of the Internet as an open communication medium. The following recommendation urges European lawmakers-the Council and the Parliament alike-to consider these questions seriously. In the light of the jurisprudence of the Court of Justice, it offers guidelines and background information with regard to the issues raised by the Member States: the compatibility of the proposed new legislation with the Charter of Fundamental Rights, the relation with the safe harbour provisions in arts 14 and 15 of the E-Commerce Directive, the relation with the concept of communication to the public in art.3 of the Information Society Directive and the objective to compensate authors and performers for the use of their works and performances. 4

2016

This dissertation was written as part of the LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law at the International Hellenic University. The dissertation is based on the recent judgment of the European Court of the Human Rights on Delfi v. Estonia case. This judgment caused a lot of reaction as it brought a lot of changes to the Internet Intermediaries’ regime as we know it under the eCommerce Directive. The Court held that there was no interference with the freedom of expression of the intermediary, Delfi, when held liable for comments that third parties had published as a response to an article Delfi uploaded. Moreover, it equated an internet intermediary with a traditional publisher of printed media and established an obligation of intermediaries to exercise prior control to the content posted on their website, which is currently not allowed under the e-Commerce Directive regime. In this thesis, I will describe the current regime on Internet ...

SSRN Electronic Journal, 2019

an attorney admitted in Italy, Argentina and in the State of Illinois, currently practicing in Chicago. I graduated with an LLM in International Intellectual Property at Chicago-Kent College of Law in May 2019 with honors. I express immense gratitude to my daughter Jasmine who supported me during my studies and to my mother. I would like to also thank my professors in Legal Writing: Edward Lee and Runhua Wang, as well as, professors: Alain Villeneuve, for his encouragement; and Graeme Dinwoodie, for precipitating my great interest in international copyright issues.

2019