after enforcement challenges posed by new means
of exploitation. The traditional distinction between
service provider and facility user may be blurred
by the internet - a smart prevision of the debate
over the “neutral” and “passive” character of an
information service provider, culminating in L’Oréal
v eBay2 15 years later. Finally, regulation, according
to the paper, should be kept to a minimum to allow
the internet to ourish. Self-regulation would be the
most suitable means to facilitate experimentation
and new possibilities of global connectivity and
2 One could argue that this view was borne out in the
EU E-Commerce Directive in 2000,3 which established
general and horizontally available conditions under
which an information service provider (ISP) could be
held liable for content posted on its network.
Substantive law on copyright was indeed adapted to
electronic communications developments in 1996,
one year after the appearance of the above article,
when the 1996 WIPO Internet Treaties4 introduced
the public communication and distribution rights.
These were then introduced into EU law by the
InfoSoc Directive5 in 2001.
4 However, even those early days were not free from
considerations of a more hands-on regulatory
approach towards the information transmitted and
hosted by online intermediaries. The reasons for this
were principally based on a logic, which looked to
retrospective responsibility in the absence of other
suitable actors.6 It was based on the central role
online intermediaries played as gatekeepers and
infrastructure providers for various forms of content.
The internet posed an entirely new regulatory
challenge because it made matters of jurisdiction,
detection and enforcement more complex. With
the prospect of individuals’ prosecution being of
small effect and perpetrators difcult to get hold
2 L’Oréal (UK) Ltd v eBay International AG, eBay Europe SARL, eBay
(UK) Ltd and others, C-324/09  ECLI:EU:C:2011:474 (CJEU).
3 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, OJ L 187 2000.
4 WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT) (1996), in particular Art. 8 WCT.
5 Directive 2001/29/EC, OJ L 167, 22/06/2001 (InfoSoc
Directive), Art 3; This gives authors or right holders the
exclusive right to communication of their works to the
public including making it available “in such a way that
members of the public may access them from a place and at
a time individually chosen by them.”
6 Anton Vedder, ‘Accountability of Internet Access and
Service Providers – Strict Liability Entering Ethics?’ (2001)
3 Ethics and Information Technology 67, 69–70.
of, intermediaries were the only “tangible” actors
relatively easy to locate. On the other hand, those
voices arguing for a lighter approach towards
internet and intermediary regulation were also
using economic and moral arguments and technical
challenges of policing the internet as justication for
a light-touch approach.7
Over 20 years later the debate is essentially led from
the same angle, but has predictably, increased in
complexity as the internet makes massive strides
in transforming the ofine world and does indeed
challenge some substantive legal concepts (e.g.
copyright). There is still the view which cautions
against moving away from the current horizontal
approach in regulating intermediaries or online
platforms, pointing towards largely consistent
judgements by the CJEU as proof for the adequacy
of the current regime.8 However, voices calling
for a more robust regulatory approach - including
mandating of a more proactive role of intermediaries
or online platforms - in combating infringing content
have become more frequent.9 The assumptions,
which underpinned the original liability regime,
have changed. First, the industry itself has come
of age and is economically more viable. Secondly,
intermediaries now engage in activities beyond pure
data hosting. They directly benet from hosting by
gaining revenue through advertising add-on services
such as display optimization or using trafc data.
This puts a new perspective on the technical and
automatic character of their activities. Finally,
ltering technology has advanced in a way that
makes effective monitoring for infringing content
more feasible.10 These considerations can also be
7 Graham Pearce and Nicholas Platten, ‘Promoting the
Information Society: The EU Directive on Electronic
Commerce’ (2000) 6 European Law Journal 363, pp. 370-376,
Lilian Edwards, ‘The Fall and Rise Of Intermediary Liability
Online’, Law and the Internet (3rd ed, Hart Pub 2009) 84–87.
8 See for example Eleonora Rosati, Why a Reform of Hosting
Providers’ Safe Harbour Is Unnecessary under EU Copyright
Law (Zenodo 2016)., and Giancarlo Frosio F, ‘Reforming
Intermediary Liability in the Platform Economy: A European
Digital Single Market Strategy’  Northwestern
University Law Review Online.
9 See the more holistic argumentations of Frank Pasquale,
‘Platform Neutrality: Enhancing Freedom of Expression in
Spheres of Private Power’ (2016) 17 Theoretical Inquiries
in Law 487., Robin Mansell, ‘The Public’s Interest in
Intermediaries’ (2015) 17 info 8., and specically related
to infringing content Peggy Valcke, Aleksandra Kuczerawy
and Pieter-Jan Ombelet, ‘Did the Romans Get It Right?
What Del, Google, EBay, and UPC TeleKabel Wien Have
in Common’ <https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2839213> accessed 2 March 2017. Or
Mariarosaria Taddeo and Luciano Floridi, ‘The Debate on
the Moral Responsibilities of Online Service Providers’
(2016) 22 Science and Engineering Ethics 1575.
10 D Friedmann, ‘Sinking the Safe Harbour with the Legal
Certainty of Strict Liability in Sight’ (2014) 9 Journal of