Liability Exemptions Wanted! Internet Intermediaries' Liability under UK Law

• Author: Sophie Stalla-Bourdillon
• Position: Lecturer in IT/IP law, University of Southampton, UK
• Pages: 289-299







 !∀

289

Liability Exemptions Wanted!

Internet Intermediaries’ Liability under UK Law

Sophie Stalla-Bourdillon

Lecturer in IT/IP law

University of Southampton, UK

s.stalla-bourdillon@soton.ac.uk

Abstract. Since a few years, cases involving Internet intermediaries have sprung up before

UK courts. Although the first cases were concerned with issues of defamation, more recent cases

do deal with issues of Intellectua l property infringement, be it trade mark infringement or

copyright infringement. The purpose of this chapter is thu s t wofold: First, to clarify the

articulation of the liability exemptions governing the activities of Internet intermediaries that come

from European law, a nd, national rules of civil liability. Indeed, liability exemptions seem to be of

little interest in the light of national pre-existing tort law rules; Second, to examine how the

distinction between financial liability and equitab le relief has been construed and instrumentalized

by judges to limit the scope of the exemptions adopted in favour of “passive” intermediaries,

namely mere conduits. Truly injunctions granted against Internet intermediaries have be en

calibrated in such a way that liability exemptions are likely to become an empty shell when IP and

in particular copyright infringements are at issue. The foregoing therefore does seem to show once

again that the liability exemptions, as conceived by the drafters of the Directive on e-commerce,

are becoming a dead letter for a significant number of intermedia ries

© 2012 Sophie Stalla-Bourdillon. Published by JICLT. All rights reserved.

1. Introduction

Since a few years, cases involving Internet intermediaries have sprung up before UK courts and judges have not

hesitated to frequently ask preliminary questions to the Court of Justice of the E uropean Union (CJEU) to get

clarifications as regards the way the exemptions laid do wn in the Directive 2000/31/EC on e-commerce1 must be

interpreted2. Although the first cases were concerned with issues of defamation3, more recent cases do deal with

issues o f Intellectual property infringement, be it tr ade mark infringement or copyright infringement4.

Furthermore, the enactment of the Digital Economy Act in 20 105 to subdue online piracy and more precisely

1

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society

services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'), OJ L 178, 17.7.2000, p. 1–16.

2

L'Oreal SA v eBay International AG [2009] R.P.C. 21 (L’Oréal v eBay (UK)). See also Interflora Inc v Marks & Spencer Plc [2009]

EWHC 1095; ITV Broadcasting Ltd v TV Catchup Ltd (No. 2), [2011] EWHC 1874 (Pat).

3

See in particular Godfrey v Demon Internet Ltd [2001] QB 201; Bunt v Tilley [2006] EWCH 407 (QB); Imran Karim v Newsquest Media

Group Ltd [2009] EWHC 3205 (QB); Metropolitan International Schools Ltd v Designtechnica Corp. [2009] EWHC 1765 (QB)

(Metropolitan); Kasche v Gray [2010] EWHC 690 (QB).

4

Interflora Inc v Marks & Spencer Plc [2009] EWHC 1095; Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch)

(Newzbin 1), [2010] FSR 21 (Newzbin 1bis); Twentieth Century Fox Film Corp v BT [2011] EWHC 1981 (Ch), (Newzbin 2) [2011] EWHC

2714 (Ch) (Newzbin 2bis); R, on the application of British Telecommunications Plc and another v Secretary of State for Business,

Innovation & Skills and others (Open Rights Group and another, intervening) [2011] EWHC 1021 (Admin) (BT v Secretary of State for

Business). See also ITV Broadcasting Ltd v TVCatchup Ltd [2010] EWHC 3063 (Ch); ITV Broadcasting Ltd v TV Catchup Ltd (No. 2),

[2011] EWHC 1874 (Pat).

5

2010 c. 24.