Liability of intermediary service providers in the EU : review of current developments

Abstract

The aim of the thesis is to make a review of the current state of law regarding to liability of intermediary online service providers of illegal information they transmit or store. The review is made in European context based on EU law by positivistic approach. More specifically, the scope of the thesis is the recent interpretations of the provisions of section 4 of the eCommerce Directive.

Narrow interpretation of the special liability regime provided for by the eCommerce Directive has been avoided by the Court of Justice of the European Union (ECJ). Definitions provided for by Articles 12—14 of the directive should be flexible in order to be applicable in dynamic technological environment and promote technological advance.

In order to avoid unjust burdens to businesses of online service providers, the general monitoring ban, provided for by Article 15 of the eCommerce Directive and confirmed by the ECJ, should be considered absolute. Specific monitoring measures are not covered by the ban and therefore they may be imposed on service provider in accordance with principle of proportionality in specific cases. Balancing interests at stake is essential before imposing any injunction on an intermediary service provider’s business.

Revision of the provisions concerning the intermediary service providers’ special liability regime is needed since only very few providers of modern online services based on user-generated content may benefit from the regime.