Standards for Duty of Care? Debating Intermediary Liability from a Sectoral Perspective

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Author	Carsten Ullrich
Pages	111-127

Standards for Duty of Care?

2017

111

Standards for Duty of Care?

Debating Intermediary Liability from a Sectoral Perspective

by Carsten Ullrich*

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Ca rsten Ullrich, Standards for D uty of Care? Debating Intermed iary Liability from a S ectoral

Perspective, 8 (2 017) JIPITEC 111 para 1.

Keywords: Intermediary liability; regulation; sectoral approach; self-regulation; reasonable duties of care

a sectoral, problem-driven approach to regulation”.

This paper will map out and critically evaluate some

current sectoral (read vertical) regulatory develop-

ments, which may affect intermediary liability. It will

look at recent, more top-down approaches proposed

by the EU (e.g. in copyright), as well as self-regula-

tory efforts. This will be compared to less publicized

developments, which have notably taken place in

the area of product and financial regulation affecting

ecommerce, such as for example efforts to combat

the sale of fake medicines, unsafe products online, or

anti-money laundering compliance. In these areas, it

is argued that regulatory authorities have more pro-

actively engaged online platforms, both on a legisla-

tive and practical level. A special focus in this context

will be on the role of reasonable duties of care which

intermediaries may be required to apply in order to

detect and prevent infringements. Could these more

“grassroots” developments and the convergence of

online and offline worlds provide blueprints to en-

courage the development of a new content liability

framework based on sectoral duties of care?

Abstract: The EU’s current regulatory frame-

work for the content liability of online intermediar-

ies was created in 2000 with the E-Commerce Direc-

tive (ECD). Already in those days, during the run-up

to the ECD, there was an intense debate regarding

whether a light-touch approach or more stringent

content liability regime for intermediaries would be

the appropriate way forward. 20 years later the de-

bate is essentially led from the same angle, but has

predictably, increased in complexity as the internet

makes massive strides in transforming the “offline”

world. There are those who argue that a purely hori-

zontal approach in regulating internet intermediaries,

or online platforms, remains sufficient. Others think

the time has come to reflect the disruptive entrances

online platforms made in various sectors of society

in more vertical changes affecting substantive law.

The EU Commission sits on the fence it seems, how-

ever. In its communication on online platforms and

the digital single market, the Commission announced

last year that it would leave the current intermediary

liability regime as it is for now “while implementing

A. Introduction†

The debate over internet regulation began

since the internet started to make an increasing

impact on culture and the economy. As a purely

illustrative example, a contribution from 1995 by

Euan Cameron & Caitriona Hegarty1 argued that

* LLM (Edinburgh), PhD candidate in Law under the

supervision of Prof. Mark Cole at the Doctoral Training

Unit on Enforcement in Multi-Level Regulatory Systems

(DTU REMS), Faculty of Law, Economics and Finance (FDEF),

University of Luxembourg.

existing substantive law was apt to deal with the

transformations introduced by the internet and that

the main challenge would be one of enforcement.

For copyright - which is one of the more prominent

examples discussed - the paper submits that

rights owners who take advantage of the new

infrastructures should be left with the task of looking

1 Caitriona Hegarty and Euan Cameron, ‘Case for Minimal

Regulation of Electronic Network Communications’

papers/1995/Case%20for%20Minimal%20Regulation%20

of%20Electronic%20Network%20Communications.pdf>

accessed 3 January 2017.

2017

Carsten Ullrich

112

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

expression.

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 difcult to get hold

2 L’Oréal (UK) Ltd v eBay International AG, eBay Europe SARL, eBay

(UK) Ltd and others, C-324/09 [2011] 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 justication 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 ofine world and does indeed

challenge some substantive legal concepts (e.g.

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 benet from hosting by

gaining revenue through advertising add-on services

such as display optimization or using trafc 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’ [2017] 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 specically 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’

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

Standards for Duty of Care?

2017

113

traced through CJEU case law, which sought to

adapt to the evolving business models and technical

activities of hosting providers when looking at the

liability exemption for information service providers.

Additionally, service providers, as economically

viable and powerful gatekeepers of access to the

internet, are increasingly charged with a moral

obligation to act responsibly and apply duties of care

on the lines of corporate social responsibility.

the intermediary landscape diversies, those ethical

norms may call for different kinds of sectoral duties

of care depending on the area of infringement.13

The problem with these increased responsibilities

is that private actors will be required to judge on the

legality of a huge variety of content. This problem

may negatively affect freedom of expression and

information.

6 However, it seems that the EU Commission sits on

the fence. In response to the results of the “Public

Consultation on the Regulatory Environment

for Platforms” launched in 2015, the Commission

announced last year that it decided to leave the

current intermediary liability regime of the ECD as it

is for now “while implementing a sectoral, problem-

driven approach to regulation”.14 It still would

review, however, in parallel the need for guidance

on voluntary, good faith measures and Notice-and-

Takedown (NTD) frameworks for online platforms.

The consultation had found that 50% of respondents

saw the current ECD liability regime as not t for

purpose, citing dissatisfaction with national case

law.16 Moreover, the majority of respondents

demanded that further categories of intermediary

services be dened, as well as a more differentiated

policy approach towards the type of illegal or

Intellectual Property Law & Practice 148, pp. 152–153.

11 See the consideration of the CJEU in Google France,

Google Inc v Louis Vuitton Malletier, C-236/08 CJEU [2010]

ECLI:EU:C:2010:159 (CJEU). L’Oréal v eBay (n 2)., through to

the recent ruling in GS Media BV v Sanoma Media Netherlands

BV, Playboy Enterprises International Inc, Britt Geertruida Dekker,

C-160/15, [2016] ECLI:EU:C:2016:644 (CJEU)., Del AS v Estonia,

no 65469/09 (ECtHR (Grand Chamber)).

12 Taddeo and Floridi (n 9).

13 Valcke, Kuczerawy and Ombelet (n 9). who analyze the

duty of care considerations in the recent CJEU and ECtHRs

judgements in this area.

14 EU Commission, ‘Online Platforms and the Digital Single

Market Opportunities and Challenges for Europe COM(2016)

288 Final’ p. 9.

15 Ibid.

16 EU Commission, ‘Synopsis Report on the Public Consultation

on the Regulatory Environment For Platforms, Online

Intermediaries and the Collaborative Economy’

ec.europa.eu/digital-single-market/en/news/results-

public-consultation-regulatory-environment-platforms-

online-intermediaries-data-and> accessed 29 March 2017.

p. 15.

infringing content.17 In addition, most intermediaries

maintain that the national application of the concept

of the E-Commerce Directive of a “mere technical,

automatic and passive nature”18 of transmission of

information by intermediaries needs to be claried.

The legal uncertainty surrounding the concept is

inhibiting investment.

This paper will map out some recent sectoral (i.e.

vertical) developments with regards to content

hosted by online platforms or ISPs. In the second

section, following the introduction, it will review a

series of legislative proposals by the EU Commission

affecting ISPs and look also at policy developments

in the area of trademarks, where no equivalent

proposals have been made so far. First, changes

to the law that were recently proposed by the

European Commission in the area of copyright will

be reviewed. Second, sectoral regulatory trends with

regard to child protection, hate speech, and fake

news will be assessed; in particular, the recent draft

proposal of the Audiovisual Media Services Directive

(AVMSD)19 concerning video sharing platforms

(VSPs). In addition, efforts to combat this kind of

content on other types of platforms will be assessed.

For these proposals, the impact on the liability

exemption provisions in Articles 14 and 15 of the ECD

will be assessed. The review will also include a short

excursion into recent national attempts to regulate

hate speech and fake news, notably in Germany. The

paper will then look at the sectoral challenges with

regards to trademark infringements; namely, the

sale of counterfeit products on e-commerce sites,

where so far no regulatory reform proposals have

been made. Section III will then present other more

“grassroots” sectoral developments, which have

notably taken place in the area of product regulation

affecting e-commerce. It will rst review national

and EU efforts to combat the online sale of fake

medicines; secondly, regulatory and enforcement

trends in online food retail; thirdly, non-compliant

electronic products; and lastly look at anti-money

laundering due diligence measures employed in the

nancial sector. The aim of this broader than usual

review is twofold. First, the paper will investigate

the impact of these developments on the ECD

Articles 14 and 15, specically the increasingly

difcult distinction between specic infringement

prevention (Article 14) and the preclusion of a

general obligation to monitor (Article 15). Secondly,

it will review the impact of these developments on

17 Ibid. p.16.

18 Ibid. pp. 15-16, and as stated in Recital 42 of ECD, 2000/31.

19 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT

AND OF THE COUNCIL amending Directive 2010/13/EU

on the coordination of certain provisions laid down by

law, regulation or administrative action in Member States

concerning the provision of audiovisual media services in

view of changing market realities, COM(2016) 287 nal 2016.

2017

Carsten Ullrich

114

efforts to dene reasonable duties of care which

intermediaries may be required to apply in order to

detect and prevent infringements.20 It is submitted

that developments in online market surveillance in

the area of product regulation, with its strong focus

on standardization and industry co-regulation,

could serve as a useful example for developing

standardized duties of care. Accordingly, a focus will

be on EU and national efforts to promote industry

self- and co-regulation.21 This idea will be taken up

with a view to understand how far standardization

across sectoral areas can help to bring about more

codied, sectoral duties of care as a core element of

a new regulatory approach towards intermediaries.

It should be ment ioned that the sectoral outline

offered here has its limitations. Given the restrictions

of space, depth of coverage has succumbed to breadth.

The review concentrates on the recent regulatory

proposals and their impact on intermediary liability

in the strictest sense. Therefore, a more thorough

analysis with regards to substantive law (e.g. the

right of communication to the public in the latest

online platforms, or a more detailed review of

applicable case law, has not been undertaken.

Consequently, this paper will also not analyse the

current regulatory framework, for example, in the

area of copyright or audiovisual media services

in deeper detail. It will concentrate on recent EU

policy proposals and other sector developments in

the area of ISP liability and offer a forward looking

proposition to incorporate experience from the area

of product regulation to dene standardized duty of

care regimes for ISPs.

B. Sectoral Review

I. Copyright

The EU Commission announced that as part of its

sectoral, problem driven review of intermediary

liability, it would rst focus on copyright.22 This

is not surprising. Intellectual property rights and

most rapidly and substantially affected by the

arrival of the internet and online intermediaries.

The digitization of cultural goods, such as music,

literature and lms, in connection with the

ubiquitous nature of the internet, meant that

copyrighted material can be multiplied, accessed and

20 Ibid. Recital 48.

21 Hegarty and Cameron (n 1). p. 7.

22 EU Commission, ‘COM(2016) 288 Final’ (n 14).

distributed widely, instantaneously and without loss

in quality. Hence the early cross references between

the ECD and InfoSoc Directives23 in 2001, and the

IP Enforcement Directive (IPRED)24 in 2004. Since

their inception, the ECD’s Articles 12 - 15 have been

used to a vast extent to determine ISP’s liabilities

with regards to intellectual property infringements

online. This is played out in relevant case law, which

deals overwhelmingly with the communication

to the public and use of copyright protected

works, or the illegitimate sale, advertisement, or

use of trademark protected goods and services.

Consequently, academic attention is also focussed on

the interplay between ISPs and the enforcement of

IP rights. For purely illustrative reasons, a keyword

search (using Google scholar) returned 1,890 results

when searching for “e-commerce directive” in

conjunction with “copyright” and 777 results for

“trademark”. By contrast, one obtains substantially

fewer results when coupling “e-commerce directive”

with “medicines” (127) and “product safety” (88) or

“food safety” (37).25

True to its communication, following the

consultation on online platforms and the Digital

Single Market (DSM), the EU Commission published

its proposals for a new Directive on copyright in

the Digital Single Market (DSM)26 in 2016. These

proposals have attracted immediate criticism27:

1) despite the announcement to the contrary, the

provisions in Article 13 of the copyright directive

would alter the current intermediary liability regime

and impose stricter liability provisions on online

platforms; 2) the proposals would be in conict with

Article 15 of the ECD, which precludes the imposition

of general monitoring obligations on ISPs. For the

purposes of this article, the analysis will be limited

to the proposed Articles 13 of the new copyright

directive, which relate specically to Articles 12 –

15 of the ECD and its relevant Recitals28 concerning

23 Directive 2001/29/EC of the European Parliament and of

the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information

society, OJ L 167 2001. Recital 16.

24 Directive 2004/48/EC of the European Parliament and of the

Council of 29 April 2004 on the enforcement of intellectual

property rights, OJ L 157 2004. Art. 2.

25 Search conducted on 03/03/2017.

26 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT

AND OF THE COUNCIL on copyright in the Digital Single

Market, COM(2016) 593 nal 2016.

27 See the responses by Frosio (n 8)., European Copyright Society,

‘General Opinion on the EU Copyright Reform Package’ (24

January 2017)

les.wordpress.com/2015/12/ecs-opinion-on-eu-

Stalla-Bourdillon and others, ‘An Academic Perspective on

the Copyright Reform’ (2017) 33 Computer Law & Security

Review 3.

28 The relevant ECD Recitals are: 42, 45 – 49. Recital 42 ties the

Standards for Duty of Care?

2017

115

intermediary liabilities.29

Draft Article 13 is contentious because it appears

to have given consideration to industry pressure to

use copyright as means to modify the safe harbour

provisions through the backdoor.30 Recital 38 states

that “where information society providers store and

provide access to the public to copyright protected

works… and performing an act of communication

to the public, they are obliged to conclude licensing

agreements with rights holders”

unless they are

covered by the liability exemptions of Art. 14 ECD.

The text becomes more contentious when looking

at the qualifying comments with regards to the

role of the ISP. Recital 38 has an almost identical

rendition of the judgement in L’Oréal v eBay,32 when

it says that the ISP’s may acquire an active role by

“optimising the presentation of the uploaded works

or subject-matter or promoting them”.

By contrast,

the Commission’s add-on in the same sentence, that

the means by which that optimisation is achieved

shall be not taken into account, contradicts what

had been said by the CJEU in that same judgement.

At the time, the CJEU actually referred the matter

back to the national court for an examination of

the concrete circumstances to decide whether eBay

had played such an active role.34 Unfortunately,

the application by the UK High Court to which the

case was referred back never occurred as the two

parties settled in 2014.35 However, it seems that the

Commission’s wording would now pre-empt any

such assessment. The risk is that this potentially

disqualies ISPs providing structured and optimised

content presentation for their content uploaders

from the availability of the liability exemption in

availability of the liability exemptions to the “mere technical,

automatic and passive nature” of the ISPs activity. Recitals

45 – 49 concern the preventive infringement measures

member states can impose on ISPs, while precluding the

obligations of general monitoring. They also mention the

possibility to require service providers to duties of care for

detecting and preventing infringements and to develop

voluntary codes of conduct.

29 As mentioned above a review of changes in substantial

protection and extended potential liabilities shall not be

undertaken here. The focus of this article is on infringement

prevention and duties of care.

30 Augustin Reyna, ‘A Tale of Two Industries: The “Value Gap”

Dilemma in Music Distribution’

articles/news/tale-two-industries-value-gap-dilemma-

music-distribution/421> accessed 3 June 2017.

31 See Copyright Directive Proposal (n 26)., Recital 38.

32 L’Oréal v eBay (n 2). Para [116].

33 Ibid.

34 L’Oréal v eBay (n 2). Para [117].

35 Alex Lawson, ‘L’Oreal, eBay Strike Pact To End Counterfeit

Goods Scufe’ Law360 (15 January 2014)

law360.com/articles/501675/l-oreal-ebay-strike-pact-to-

end-counterfeit-goods-scufe> accessed 7 March 2017.

Art. 14. While it is true that recent case law may

have failed to sufciently assess the role played by

ISPs in the way they structure their content and in

particular combine it with advertisements, 36 the

blanket qualication offered by Recital 38 seems

oversimplied. Despite its original announcement,

this would actually alter the current liability regime

afforded in the ECD and signicantly narrow the

availability of the hosting provider defence.

Draft Article 13 also focuses on the mandating of

ltering technologies for the enforcement of the

licensing agreements prescribed between rights

holders and ISPs. It remains to be seen whether

this article de facto invalidates Article 15 ECD,37

or whether it is “just” a very broad but specic

obligation to prevent infringements (Article 14(3)

ECD). CJEU case law has in the past been clear in

allowing at a maximum the prevention of already

notied infringements and rejecting any further

general ltering of content uploaded to a hosting

provider’s site.38 This has created a true conundrum

which exemplies the problem with the ECD. It was

drafted in the last millennium when ISPs and the

internet industry were of a different breed and

ltering technology was far from what it is today. The

changed nature of today’s online platforms has been

alluded to above. However, with ltering technology

becoming more sophisticated, the actual “tipping

point of omniscience”39 for those intermediaries who

employ it, is but a matter of time if it has not already

been reached. National courts, meanwhile, had to

be more pragmatic than the CJEU and the current

Commission proposal and adapt to this reality as can

be seen in rulings in Germany where courts have

engaged in a very detailed evaluation over the kind

of duty of care and prevention measures a video

platform can be asked to engage in.40 It is therefore

disappointing that the proposed Article 13 does not

take account of these efforts but instead aggravates

this unclear situation by further blurring the line

between mandatory ltering and the rejection of any

general obligation to monitor. It clearly backres

36 Matthias Leistner, ‘Copyright Law on the Internet in Need

of Reform: Hyperlinks, Online Platforms and Aggregators’

[2017] Journal of Intellectual Property Law & Practice

jpw190, 7. With a specic reference to recent German case.

37 Which precludes member states from obliging ISPs to

monitor information stored and transmitted on a general

basis.

38 Belgische Vereniging van Auteurs, Componisten en Uitgevers

CVBA (SABAM) v Netlog NV, C-360/10, ECLI:EU:C:2012:85

(CJEU 2012).at [101].

39 Friedmann (n 10). p. 150.

40 Haftung der Internetvideoplattform Youtube für rechtswidrige

Uploads, 5 U 87/12 (Hanseatisches Oberlandesgericht

Hamburg 5 Zivilsenat). Paras, [363, 364, 370, 477, 481] and

a detailed consideration of the Content ID software paras

[482-485].

2017

Carsten Ullrich

116

on the legislator that it did not encourage more

explicitly, at an early stage, the development of

“good Samaritan” efforts to proactively identify

and remove infringing content.41 As it stands, the

distinction between specic and general monitoring

is becoming obsolete in practice.

By contrast, the Commission now insists on bringing

ISPs and rights holders together to ensure an

effective enforcement of the licensing agreements

(Draft Article 13). However, the information ow is

remarkably one-directional in that ISPs are tasked

with providing most of the data on their activities.

On the other hand, the detail of the new complaints

and redress mechanisms remain patchy. Draft

Recital 38 is even more intrusive in that it asks ISPs

to share information at an excessive level. For many

ISPs their ltering technology is proprietary, and

may even be part of more holistic and sensitive fraud

detection and investigation activities. It should not

be shared with any external third parties, unless

explicitly requested by courts and law enforcement

authorities. In addition, expecting ISPs to share

information on “the type of technologies used,

the way they are operated and their success rate

for the recognition of right holders’ content” with

rights holders, who may be also in contact with

competing platforms and other third parties, goes

very far. This formulation seems to be informed by

rights holder interests and reects frustration over

not getting sufcient information on, for example,

repeat infringers or the speed and extent to which

intermediaries investigate.

Moreover, the Commission’s insistence on what

appear to be private cooperation agreements between

ISPs and rights holders can also be seen critically.

Making ISPs, who are privately and commercially

motivated actors with decisive power over access to

speech and information into copyright enforcement

agents for the entertainment industry,

would be

a step backward in the quest for an “open, user-

centric, interoperable platform ecosystem”, which

the internet is supposed to become in Europe.43

41 Leistner (n 36) p. 6.

42 Enrico Bonadio, ‘File Sharing, Copyright and Freedom of

Speech’ (2011) 33 E. I. P. R 619, 628.

43 EU Commission, ‘COM(2016) 288 Final’ (n 14) p. 4.

II. Protection of minors, hate

speech and fake news

The challenges of vertical legislation in the complex

ecosystem in which today’s platforms operate

become apparent when looking at the latest proposal

to amend the redraft of the Audiovisual Media

Services Directive (AVMSD).44 The Commission

published a proposal to amend Directive 2010/13/EU

concerning Provision of Audiovisual Media Services

(AMSD) in May 2016 as part of its outcome from the

public consultation on online platforms.45 While

the above proposal on copyright clearly targets all

kinds of ISPs, the intermediary liability provisions of

Article 28a in the recently proposed re-draft of the

AVMSD looks at the protection of minors and at hate

speech on video-sharing platforms (VSPs). However,

concerns over hate speech and access to material

unsuitable for/or abusive towards children are not

just an issue concerning video-sharing platforms,

but also sites hosting news, blogs, pictures and

social media in general. With a consistent sectoral

approach the Commission could have targeted this

kind of content (be it speech, static, moving images,

or sound) across all platforms. For example, the EU

Commission recently agreed on a (non-binding)

code of conduct with major social media platform

operators to combat hate speech and terrorist

content.46 The press release contains a reference

to the NTD mechanism, which resulted from the

ECD. In the code of conduct the participating

platforms commit, amongst others, to processes for

effective notication, review, and removal of hate

speech and incitement to violent content (within

24 hours) as well as information sharing on the

NTD procedures. The corresponding measures in

the AVMSD re-draft (Article 28a) applying to VSPs,

are by far more detailed and prescriptive. First, the

protection afforded through Article 14 ECD for VSPs

is not clear. The Commission refers to the Article 14

(ECD) liability exemptions47 but species that where

the VSPs have control over the organisation of the

content, protective measures should apply to the

organisation of that content and not to the content

44 ‘Proposal for a directive of the European parliament and

of the Council Amending Directive 2010/13/EU on the

Coordination of Certain Provisions Laid down by Law,

Regulation or Administrative Action in Member States

Concerning the Provision of Audiovisual Media Services in

View of Changing Market Realities, COM(2016) 287 Final’

(2016).

45 Proposed AVMSD amendment (n 19).

46 ‘European Commission and IT Companies Announce Code

of Conduct on Illegal Online Hate Speech’

eu/rapid/press-release_IP-16-1937_en.htm> accessed 9

March 2017. and ‘Code of Conduct on Countering Illegal

Hate Speech Online’ (2016)

fundamental-rights/les/hate_speech_code_of_conduct_

en.pdf> accessed 9 March 2017.

47 Proposed AVMSD amendment (n 19).

Standards for Duty of Care?

2017

117

as such. This is ambiguous. In order to organize

the content in the way specied in Article 28a (by

applying age verication, parental control) the

nature of the content would necessarily have to be

monitored in some way, unless the platforms rely

fully on the user to ag and categorize restricted

content. It can be argued however, that in order

to offer efcient protection, VSPs would need to

accompany user-driven categorization by some

due diligence measures, e.g. audits, spot checks.

That in itself would involve - if done properly and

effectively - analysing, i.e. ltering and screening

content. As mentioned above, the proposal appears

to not fully take into account the realities of what

platforms may be able to do already as part of their

risk management activities. In addition, as in the

congruent, with a general obligation to monitor,

which is precluded by Article 15 (ECD). Thus, would

this mean that only those VSPs which do not organize

the content at all would be exempt from any of the

measures listed in Article 28a? The complementation

of the ECD, announced in the draft proposal48 would

actually amount to a de facto modication of Article

14 for VSPs. This is even more complicated when

considering that, while prescribing maximum

protection measures for content that is harmful for

minors and for content inciting to violence, Member

States may impose stricter measures to combat

illegal content if they comply with Articles 14 and

15 ECD. 49 It is also not clear how any protection

measures beyond the maximum set by the proposed

directive and in the context of available technology

would not result in general monitoring precluded by

Article 15 ECD. If anything, these measures introduce

more ambiguity and potentially more inequality

compared to picture and news/text based platforms

and systems. The Commission uses the European

Regulators Group for Audiovisual Media Services

(ERGA) (Article 30a) to facilitate co-regulation

through establishing codes of conduct (Article 4(7)).

The development of codes of conduct and standards

drawn up under a co-regulatory approach could

be seen as a step towards developing technology-

based diligence processes. However, in view of the

strict measures proposed in Article 28a, ISPs may be

hesitant to volunteer any information about their

true technical capabilities. Moreover, a truly sectoral

approach would have looked at code of conduct for

hate speech and child protection across the entire

spectrum of intermediaries. It is understood that the

Commission may only have had the AVMSD and its

extension of scope to VSPs at hand as a legislative

48 Ibid 5.p.3.

49 Proposed AVMSD amendment (n 19). Recital 30, and Article

28a (5). The measures mentioned in Art 28a are maximum

measures only with regards to content harmful for minors

and content inciting to violence and hatred. Stricter

measures may apply for illegal content, but they must

comply with Articles 14 and 15 ECD.

tool to quickly propose regulation in this area.

However as it stands, a company like Facebook may

now face different obligations and liability risks

depending on whether hate speech is posted by

video, or as a written article.

The current debate surrounding “fake news” on

social media platforms not only illustrates the

politicised environment in which today’s platforms

operate but also how their inuence and impact on

information and news is perceived in society. While

the actual effect of fake news in shaping political

views and voting behaviour has not yet been proven,

it still highlights the importance of social media as

an information source.50 In fact, fake news may be

much more motivated by underlying economics,

enabled by a shift in advertising business models

on the internet, than targeted misinformation.

The

phenomenon attracted the attention of legislators

in EU Member States and the Commission.52

The German Government even proposed a draft

“network enforcement” law to oblige social media

platforms to delete “hate crime“ content which is

“obviously infringing” within 24 hours following

notication.53 Non-obvious infringing content

must be decided on within 7 days. The draft denes

50 Hunt Allcott and Matthew Gentzkow, ‘Social Media and Fake

News in the 2016 Election’ (National Bureau of Economic

Research 2017)

accessed 10 March 2017. They argue that fake news are

mainly part of a long history of conspiracy theory based

information and that the actual impact on voting outcomes

in the 2016 US Federal Elections is irrelevant. and: Emma

Goodman, ‘How Has Media Policy Responded to Fake News?’

how-has-media-policy-responded-to-fake-news/> accessed

30 March 2017.

51 Damian Tambini, ‘How Advertising Fuels Fake News’

how-advertising-fuels-fake-news/> accessed 30 March

2017. Demonstrates how the change in advertising models

on the internet which enables publishers worldwide, with

no or little adherence to professional ethical principles or

journalistic standards, to use platforms to publish news and

to benet nancially from its spread. In addition, platforms

prot nancially too from attracting trafc to their sites.

52 The UK Parliament opened an inquiry into “Fake

News” in early 2017: UK Parliament, Culture, Media and

Sport Committee, ‘“Fake News” Inquiry Launched’ (30

January 2017)

committees/committees-a-z/commons-select/culture-

media-and-sport-committee/news-parliament-2015/

fake-news-launch-16-17/> accessed 30 March 2017., and

the EU Commission also reacted to the phenomenon with

heightened attention: EU Observer, ‘EU Raises Alarm

on Fake News and Hacking’ (11 January 2017)

euobserver.com/foreign/136503> accessed 30 March 2017.

53 Bundesministeriums der Justiz und für Verbraucherschutz,

‘Entwurf Eines Gesetzes Zur Verbesserung Der

Rechtsdurchsetzung in Sozialen Netzwerken’

netzpolitik.org/wp-upload/2017/03/1703014_

NetzwerkDurchsetzungsG.pdf> accessed 15 March 2017. p.

2017

Carsten Ullrich

118

“hate crime” as libel, defamation, and incitement to

hatred, but also includes “punishable fake news”.54

It will be interesting to see how platforms will make

the call on “obviously infringing” fake news if the

draft enters into force. The law would apply to all

social networks (dened by the law) which fall under

the denition of service providers as dened per

ECD Article 2(b). The draft makes due reference to

Article 14 ECD, as well as Recitals 46 and 48 ECD about

the possibility of member states to ask providers to

prevent repeat infringements and to mandate that

the providers apply reasonable duties of care.55

Following suit, the draft also mentions that this must

not constitute general monitoring duties precluded

under Article 15. Indeed, the draft law does not

appear to mandate any measures that could be seen

as proactive general monitoring. It appears to x at

a national level the code of conduct agreed earlier in

the year between platforms and the Commission and

a similar agreement concluded at national level,56

and prescribes detailed NTD obligations. For the

notices, it relies on Government and industry based

complaint mechanisms already in place, as well as

user complaints. The mandating of regular reporting

and the creation of a “responsible person” is in line

with similar compliance requirements across other

sectors.57

It remains to be seen whether the law will pass in this

form and prior to the federal elections in Germany

in September 2017. However, these developments

can be framed into the wider context over media

pluralism and the power online intermediaries have

gained as gatekeepers to information. It reects a

tendency to discuss more openly the responsibility

of social media platforms, search engines, and

platforms in general over the content hosted on

their sites. In fact, the danger of “cheap, uff speech”

on the internet undermining the economic basis of

quality journalism was noted some time ago.58 First,

the cost-competition offered by cheaper journalism

54 Ibid. p.10.

55 Ibid. p.12.

56 Ibid., Apart from the EU initiative, the German Government

had agreed one year earlier non-binding measures to

tackle hate speech with Facebook, Google and Twitter,

amongst others: Bundesministeriums der Justiz und

für Verbraucherschutz, ‘Together against Hate Speech

- Ways to Tackle Online Hateful Content Proposed

by the Task Force against Illegal Online Hate Speech’

Artikel/12152015_TaskForceErgebnispapier_eng.pdf?__

blob=publicationFile&v=2> accessed 30 March 2017.

57 The concept of “responsible” or “competent” persons and

statutory reporting can be traced through data protection,

nancial compliance, or occupational health and safety

regulation.

58 Neil Weinstock Netanel, ‘New Media in Old Bottles? Barron’s

Contextual First Amendment and Copyright in the Digital

Age’ (2008) 76 Geo. Wash. L. Rev 952, pp.965, 977-980.

(e.g. blogging – be it true or spun news) increases

economic pressure on expensive, quality and fact-

checking types of journalism, while distribution and

availability to a mass audience remain the same.

Secondly, the internet diverts advertising revenue

away from traditional news media to cheaper online

content, which in effect represents a redistribution

of funding from traditional journalists to online news

creators.59 Search engines and news aggregators

would inevitably contribute to this trend.60

More generally, there is an inherent bias when

search engines, social media, or news aggregators

lter, rank and display information and news to

users. The algorithms governing the display and

ranking of news and search results are composed

from both ideological interests to remain relevant

for users and economic interests to remain

relevant for advertisers.61 The traditional measure

of market power may not apply any longer for

powerful intermediaries operating in multi-sided

markets with intricate and not yet fully understood

interdependencies.62 One proposed new regulatory

approach would consider intermediaries as “digital

utilities”, reecting their role as gatekeepers for

access to speech and information.63 The control

they exercise over the kind of information (news,

search results) displayed to users would make them

content providers with direct liability for defamation

or copyright infringement.64 A new regulatory

approach could also involve mandated algorithmic

accountability, or the ability of regulators to evaluate

algorithmic models with regards to their impact on

serving the public interest.65 This discussion shows

how closely interrelated content and infrastructure

are in today’s online platform economy. The

organization and distribution of search results

and newsfeeds is crucial for the economic success

of various platforms. However for this to happen,

algorithms will inevitably have to be able to analyse

59 C Edwin Baker, Media Concentration and Democracy: Why

Ownership Matters (Cambridge University Press 2007). In:

Netanel (n 58).pp.977-980.

60 Annabelle Gawer and others, Online Platforms: Contrasting

Perceptions of European Stakeholders a Qualitative

Analysis of the European Commission’s Public Consultation

on the Regulatory Environment for Platforms: Final Report.

(Publications Ofce 2014)

i?target=EUB:NOTICE:KK0416398:EN:HTML> accessed 13

March 2017.

61 Paško Bilić, ‘Search Algorithms, Hidden Labour and

Information Control’ (2016) 3 Big Data & Society

205395171665215.

62 Damian Tambini and Sharif Labo, ‘Digital Intermediaries in

the UK: Implications for News Plurality’ (2016) 18 info 33.

pp.34-35.

63 Pasquale, ‘Platform Neutrality’ pp. 493-494.

64 Ibid.

65 Julie E Cohen, ‘The Regulatory State in the Information Age’

(2016) 17 Theoretical Inquiries in Law 369. pp.385, 403-404.

Standards for Duty of Care?

2017

119

and recognise the content as well. The wide-reaching

exemption that exists currently for these “mere

conduits” or “hosts” who hold such sweeping gate-

keeping powers may not be justiable any longer.

The concrete duties which ow from these powers

and the balance that needs to be respected between

combating illegal content and user rights66 need to

be recalibrated by the EU legislator. However, the

current proposals to tackle hate speech and content

harmful for minors are fragmented and do not

cover all content formats consistently. Secondly, by

advancing the scope of preventive monitoring, the

AVMSD proposal ignores the fact that the dividing

line to general monitoring is in the process of

vanishing. Instead of insisting on the mantra pitting

Article 14 against Article 15, it is submitted that a

formulation of morally and technically founded

duties of care would be more appropriate. Thirdly,

the AVMSD proposal outsources the decision making

over content removal to agreements between

powerful private actors, thus potentially limiting

media pluralism and tightening the grip of large

platforms over information provision. The latter is

also a danger inherent in the code of conduct the

EU Commission agreed with major social media

platforms earlier in 2016.

III. Trademarks – the online

sale of physical goods

In the analysis report of the Commission’s Public

Consultation on the Regulatory Environment for

Platforms, the sale of counterfeit goods via the

internet was judged at least as problematic by

businesses as the availability of copyright infringing

material on the internet.

Rights holders in both

the copyright and trademark intensive industries

have been similarly strong in their claims of

damage caused by infringements caused through

online commerce.68 However, the Commission did

not initiate any legislative action with regards

to combating trademark infringements on the

internet as part of its self-professed problem

driven approach, announced in the communication

following the consultation on online platforms. It

merely announced that it may consider the role

intermediaries can play in protecting IPRs, notably

with regards to counterfeit, in its upcoming review

of the IPRED.69 However, if there is reason to act

with regards to copyright and impose signicant

changes to the intermediary liability provisions

through connected legislation, then inactivity

66 Taddeo and Floridi (n 9) 1585–1586.

67 Gawer and others (n 60). pp.14-16.

68 Ibid.

69 EU Commission, ‘COM(2016) 288 Final’ (n 14) p. 8.

in the area of trademarks could introduce even

more inconsistency and legal fragmentation. This

is even more surprising as key CJEU rulings on the

availability of the liability exemption and reasonable

duties of care are coming from the area of trademark

law.70

Perhaps the disparity in legislative activity

between tackling digital copyright infringements

and trademark violations for goods sold physically

through the internet is due to the fact that

infringement detection and prevention in both

areas require different approaches. First, contrary

to digitally distributed products, the production

and delivery of physical goods happens in the

traditional brick and mortar world. One could argue

that detection and control of illegal activities in the

physical supply chain would be more straightforward

to conduct. Indeed, the disruption of the supply chain,

from suppressing manufacturing, to seizures during

shipping and distribution are the most commonly

sought ways to deal with the phenomenon.71

Notwithstanding this fact, it is however much

more difcult to ascertain from an online offering

- where just a product picture may be available -

whether it is indeed infringing a trademark. In order

to ascertain the infringing nature of a product,

detailed brand and product knowledge are needed.

This would need to be combined with fact-nding

through product inspection, involving specialised

staff, and often in close co-operation with the rights-

owner. This poses an additional challenge for online

marketplaces, which list thousands or even millions

products from a plethora of sellers potentially based

worldwide.72 The difculties in coming to a more

decisive assessment of which reasonable duties of

care can be expected from ISPs in order to prevent

70 Google France v Louis Vuitton (n 11)., and L’Oréal v eBay (n 2).

71 See Roudaut, Mickaël R., ‘From Sweathsops to Organized

Crime’, Criminal enforcement of intellectual property: a

handbook of contemporary research (Edward Elgar 2012).

for a more detailed description of the supply chain and the

breadth of counterfeiting.

72 For example as of 2014 over 2 active million 3rd part sellers

were registered on the Amazon platform (‘Amazon’s Third-

Party Sellers Ship Record-Breaking 2 Billion Items In 2014,

But Merchant Numbers Stay Flat’, Techcrunch.com, 5 January

2015,

party-sellers-2014/>) shipping over 2 bn units during that

year. In December 2017, Amazon listed 330 million physical

product offers on its worldwide marketplaces. With 8%

unit growth during that month an estimated 880K new

products would have been uploaded on average every day

worldwide, with the large majority coming from 3rd part

sellers (‘How Many Products Are Sold on Amazon.Com

– January 2017 Report’ [2017] scrapehero.com

www.scrapehero.com/how-many-products-are-sold-

on-amazon-com-january-2017-report/>). The content

recognition technologies for checking physical goods sold

online are less sophisticated than those available to digital

products.

2017

Carsten Ullrich

120

infringement, including repeat offences, have been

considered in EU and national case law.73 In L’Oréal

v eBay the CJEU found that although eBay could not

be asked to monitor its entire trafc, according to

Article 15 ECD and the balancing exercise required

by Article 3 of the IPRED, it should act as a diligent

economic operator.. It needed to identify the

infringing party and prevent further infringements

of the same kind.74 However, that guidance is

broad, and technically the dividing line between

this requirement and general monitoring is, once

more, blurred. German courts had in the past been

more inclusive towards the intermediary with

regards to the duty of care that should be expected

of them. In Internetversteigerung75 intermediary

eBay had a duty to prevent any “clearly noticeable”

trademark infringements relating to the Rolex

products in general on its site. “Clearly noticeable”

in that context relates to offers that have similar

characteristics to the already notied infringements

(same brand name and image, including different

model numbers).76 Note the similar wording in the

German draft law against hate speech asking social

media platforms to take down “obviously infringing”

content within 24 hours.77 In Kinderhochstühle78

II the Federal Supreme Court (BGH) imposed

extended duties of care on eBay with regards to

offers which it had enhanced by advertisement

links from search engines.79 Reviewing product

images and specications provided by the seller

will often remain the only tangible way of assessing

the likelihood of infringement for the intermediary

when confronted with a notice of takedown.

Secondly, the duties of care that can be expected

of intermediaries will also depend on the specic

business model and would need to be decided on a

case-by-case basis by courts. A detailed consideration

of this issue was done in YouTube v Gema.80 This

changes somewhat the approach of courts towards

duties of care compared to the sales of digital goods.

For the latter, the reliance and indeed proposed

73 Google France v Louis Vuitton (n 11). L’Oréal v eBay (n 2). Maceo

v eBay International AG, (Tribunal de grande instance de

Paris, 3ème chambre, 1ère section).

74 L’Oréal v eBay (n 2).at [120]-[122], [139]-[142], [144].

75 Internetversteigerung III (Rolex v Ricardo.de), Az I ZR 73/05 [2008]

MIR06/2008 (BGH).

76 Ibid. at [51] – [55].

77 Bundesministerium der Justiz und für Verbraucherschutz

(n 53).

78 Copyright Directive Proposal (n 26). Article 13, Recital 39.

79 Kinderhochstühle im Internet II, I ZR 216/11 [2013] MIR 2013 Dok

077 (BGH).

80 Haftung der Internetvideoplattform Youtube für rechtswidrige

Uploads, 5 U 87/12 (n 40). Hanseatisches Oberlandesgericht

Hamburg 5. Zivilsenat, At [370].

mandating of content recognition technologies,81

seems to be more technically established than

technology to identify trademark infringing use in

e-commerce on online marketplaces.

22 Thirdly, the complexity of trademark law has only

increased with the availability of goods online.

While the CJEU has repeatedly absolved online

platforms from primary liability for trademark

infringement, the scope of protection afforded to

trademark owners has extended beyond the function

of indicating the origin of a product.

Counterfeit

is arguably the most clearly infringing issue as in

this instance a person afxes a sign identical to that

of a registered trademark to goods for which the

trademark has been registered.83 In these double

identity cases, the intention of the infringer is

usually to straightforwardly imitate a trademark

and the goods related to it. However, the CJEU has

expanded the protection afforded by trademark

owners to uses which are much more difcult to

decide by platforms if faced with rights holder

notications. In Bellure84 and in Interora85 the CJEU

ruled that the unfair advantage taken by the use of

a sign similar to a registered mark with a reputation

does not need to be restricted to cases where there

is a likelihood of confusion or a detriment to the

reputation of the earlier mark.86 Although the rulings

related to comparative advertising and the use of

Adwords in search engines, there are many sellers

on today’s marketplace platforms who may fall into

the scope of these rulings. For example, a seller

might offer stationery, clothing or other accessory

products relating to what courts may identify as

reputable car brands, thus riding on the attractive

power of the car brand to boost its sales. Again, a

correct judgement call by the marketplace when

approached by brands with notices of infringement

is far from evident. Another issue concerns the sale

of goods not destined for the EU market – also called

grey goods.

In today’s global marketplace sellers

81 Copyright Directive Proposal (n 31).

82 Ilanah Simon Fhima, ‘Trademark Law and Advertising

Keywords’, Research Handbook on EU Internet Law (Edward

Elgar 2014). pp.146-151.

83 See the denition in the Agreement On Trade-Related

Aspects Of Intellectual Property Rights (TRIPS) 1994. (TRIPS

Agreement), Article 51, Footnote 14.

84 L’Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire

Garnier & Cie v Bellure NV, Malaika Investments Ltd, trading as

‘Honey pot cosmetic & Perfumery Sales’, Starion International Ltd,

C-487/07 [2009] ECLI:EU:C:2009:378 (CJEU).

85 Interora Inc, Interora British Unit v Marks & Spencer plc,

Flowers Direct Online Ltd, C-323/09 [2011] ECLI:EU:C:2011:604

(CJEU).

86 Bellure (n 84). At [50], [58] and Interora (n 85). At [60] – [95].

87 Robert W Payne, ‘Unauthorized Online Dealers of “Genuine”

Products in the Amazon Marketplace and beyond: Remedies

for Brand Owners’ [2014] J Internet Law 3.

Standards for Duty of Care?

2017

121

can list and sell products across the globe and ship

to users worldwide. Customs can only scratch the

surface in checking and detecting shipments with

such products. Furthermore, generic replacement

consumables for OEM products, such as printer

cartridges, water lters or even bin liners may pose

an issue depending on how they are advertised on

the site. These are some of the borderline cases

happening on e-commerce platforms. Not all of these

cases do necessarily restrict the trademark right of

a brand owner. By contrast, they may be subject to

abuse by brand owners and their agents themselves

by providing abusive notices. Large platforms have

responded mainly by entering the kind of private

agreements with rights holders which in the long

run could stie competition. For example, Amazon

has started to “gate” certain brands on their site,

restricting the sale of the brand either to the brand

owner themselves or to a pre-authorised selection of

distributors.88 Meanwhile eBay operates takedowns

for participants in its VERO programme, which gives

brand owners the opportunity to identify allegedly

infringing offers and notify them to the company.89

In 2011 the EU Commission initiated a Memorandum

of Understanding between rights holders and

marketplace platforms to foster cooperation and

the development measures to prevent infringements

and act against repeat infringers.90 However, the 2013

progress report of the Commission did not show any

notable progress and indeed hinted at difculties in

making stakeholders agree on a common approach.

The renewed MoU

of 2016 has remained unchanged

in wording with the sole difference that stakeholders

have agreed to some high level key performance

indicators (KPIs) measuring the efciency of the MoU.

It should be noted that it took stakeholders 5 years

88 Ari Levy, ‘Amazon’s Plan to Fight Counterfeiters Will

Cost Legit Sellers a Ton’ CNBC (29 August 2016)

www.cnbc.com/2016/08/29/amazons-plan-to-ght-

counterfeiters-will-cost-legit-sellers-a-ton.html> accessed

16 March 2017.

89 Lilian Edwards, ‘The Role of Internet Intermediaries in

Advancing Public Policy Objectives Forging Partnerships for

Advancing Policy Objectives for the Internet Economy, Part

II’

id=1875708> accessed 30 March 2017. p. 70.

90 ‘Memorandum of Understanding on the Sale of Counterfeit

Goods over the Internet, 2011’.

91 EU Commission, ‘REPORT FROM THE COMMISSION TO

THE EUROPEAN PARLIAMENT AND THE COUNCIL on the

Functioning of the Memorandum of Understanding on the

Sale of Counterfeit Goods via the Internet /COM/2013/0209

Final’ COM/2013/0209 nal

legal-content/EN/TXT/?uri=CELEX:52013DC0209> accessed

17 March 2017. See Articles 3.1 and 3.8 in particular.

92 ‘Memorandum of Understanding on the Online Sale of

Counterfeit Goods, 2016’

documents/18023/attachments/1/translations/> accessed

17 March 2017.

to agree on a few basic metrics: showing the number

of offers in selected product categories which lead to

alleged counterfeit products; the number of listings

removed following proactive platform measures

and rights-owner notications; and the number

of restrictions imposed on sellers. It is submitted

that the current unsatisfactory situation will lead

to further gating style private agreements between

platforms and rights holders which may further

restrict competition and drive out smaller sellers

with competitive and innovative offers. It appears

the sector is far away from the development of any

reasonable duty of care principles and also from the

Commission making any legislative proposals.

C. An alternative approach towards

standardized duties of care?

As mentioned earlier the ght against illegal, unsafe

or other non-conforming products in e-commerce

has received relatively little attention within the

academic literature. In the following section, the

paper presents efforts with regards to combating the

online sale of infringing medicines, food, consumer

electronics, as well as anti-money laundering due

diligence. The idea is to present approaches adopted

by market surveillance authorities and the industry

and explore whether they could serve as an example

for developing intermediary duties of care.

I. Fake medicines

The problem of substandard, spurious, falsely

labelled, falsied and counterfeit (SSFFC) medical

products has been recognised worldwide as

an important public health risk which is only

exacerbated by the internet.

While in industrialized

countries these products have rarely contaminated

ofcial supply chains, the increased importance

of recreational drugs and other non-prescriptive

medication has been capitalised on by online sellers

posing as pharmacies in the Western world.94 In

2011, the EU took concrete policy action in view

of this problem and passed legislation to prevent

SSFFCs entering the supply chain.95 Under a new

93 World Health Organisation, ‘Medicines: Spurious/Falsely-

Labelled/ Falsied/Counterfeit (SFFC) Medicines, Fact Sheet

N°275’, January 2016, http://www.who.int/mediacentre/

factsheets/fs275/en/.

94 Hans-Georg Koch, ‘Strategies against Counterfeiting

of Drugs: A Comparative Criminal Law Study’, Criminal

enforcement of intellectual property: a handbook of contemporary

research (Edward Elgar 2012).

95 Directive 2011/62/EU of the European Parliament and of

the Council of 8 June 2011 amending Directive 2001/83/

2017

Carsten Ullrich

122

Directive, businesses or persons selling medicinal

products at a distance need to notify and register

with national authorities. They will then be awarded

with a certicate identifying them as an approved

online pharmacy, which they will need to display

on each offer detail page. The logo links through

to a public a register, proving the ofcial status of

the seller.96 The Directive provides a reference to

the ECD, amongst others, by stating that persons

not meeting these conditions but selling medicinal

products at a distance shall be subject to “effective,

proportionate and dissuasive penalties.”

Moreover

the Directive fosters standardisation by making the

approval measures for online pharmacies and the

logo subject to the procedures laid down in the

Technical Standards Directive.98 While nothing is

said in that Directive about the processes for online

platforms which merely host offers from sellers of

medicinal products, the measures appear to give

e-commerce platforms a practical tool for checking

the compliance of the seller during on-boarding. It

is suggested that these measures could be part of

reasonable duties of care, which can be expected

from ISPs possibly also in other areas. In addition,

they could facilitate the prevention and detection

of infringing offers, by for example, creating a gated

product category exclusively for certied pharmacies.

Meanwhile, national market surveillance authorities

such as the UK’s MHRA have devoted resources and

created specic capabilities to lter the internet

for illegal offers. They cooperate with platform

operators and law enforcement to withdraw and

prevent infringing products.99 It could be argued that

this co-regulatory cooperation to develop dialogue

between platforms and authorities and incorporate

technical standards into the process, are more

suitable compared to purely self-regulatory models.

EC on the Community code relating to medicinal products

for human use, as regards the prevention of the entry into

the legal supply chain of falsied medicinal products 2011.

Recitals 2, 21.

96 Ibid. Article 85c.

97 Ibid. Article 85c (6).

98 Directive (EU) 2015/1535 of the European Parliament and of

the Council of 9 September 2015 laying down a procedure

for the provision of information in the eld of technical

regulations and of rules on Information Society services

2015. see Art 85 c (1) Directive 2001/83/EC (n 95).

99 Medicines and Healthcare products Regulatory Agency, UK,

‘Falsied Medical Products Strategy 2012-2015’

www.iracm.com/wp-content/uploads/2014/04/MHRA-

FMPS.pdf> accessed 17 March 2017. pp. 26-29.

II. Online food retail

Sales of food via the internet have seen a rise in

popularity. With delivery services becoming faster

and more suited to consumer demand, online sales of

food stuffs have seen a marked increase over recent

years. The food industry and the entire supply chain

are also subject to strict regulation. In 2011 the EU

adapted its regulatory framework to the online

world.100 For one, it introduced a new regulation

on food information requirements to consumers

by which food labelling in online shops was aligned

to the labelling requirements for sales in physical

shops. This now extends to ingredients lists, allergen

warnings and certain nutritional information.101

Secondly, Regulation 852/2004 requires online food

retailers to register with national authorities.102

Depending on the nature of the business, they may

even need to apply for authorisation to operate. The

surveillance and enforcement of compliance with

applicable food legislation is to be performed by

national market surveillance authorities.103 Finally,

a host of additional provisions apply to the sale

of food products, such as for example those with

pharmacologically active ingredients, products

with non-approved health claims, non-approved

novel foods,104 and organic products.105 For a large

e-commerce marketplace that hosts relevant offers,

the prospect of a safe harbour in this context may

come as a relief. However, this would not help solve

the problem. A pilot study conducted in Germany

in 2014106 searched for food stuffs containing the

known hazardous food ingredient synephine in

100 Lomme Van de Veer, ‘Food Online: Radical Changes to the

Digital Ship Window’ [2014] Eur. Food & Feed L. Rev. 78. pp.

87-90.

101 Regulation (EU) No 1169/2011 of the European Parliament

and of the Council of 25 October 2011 on the provision of

food information to consumers 2011. Article 14 (1).

102 Peter Kranz, Hannes Harms and Claudia Kuhr, ‘Kontrolle

der im Internet gehandelten Erzeugnisse des LFGB und

Tabakerzeugnisse (G@ZIELT)’ (2015) 10 Journal für

Verbraucherschutz und Lebensmittelsicherheit 13. P.14,

Regulation (EC) No 852/2004 of the European Parliament

and of the Council of 29 April 2004 on the hygiene of

foodstuffs 2004.

103 Clemens Comans, ‘Onlinehandel Mit Lebensmitteln

– Mit Den Projekten „ELKE“ Und „G@zielt“ Auf Dem

Weg Zu Einer Funktionierenden Überwachung Des

Onlinehandels’ (2015) 10 Journal für Verbraucherschutz

und Lebensmittelsicherheit 109. p. 109.

104 For a more detailed description, see: Alexandra Krewinkel

and others, ‘Concept for Automated Computer-Aided

Identication and Evaluation of Potentially Non-Compliant

Food Products Traded via Electronic Commerce’ (2016) 61

Food Control 204.

105 Council Regulation (EC) No 834/2007 of 28 June 2007 on

organic production and labelling of organic products and

repealing Regulation (EEC) No 2092/91. Article 28.

106 See for a detailed description in Krewinkel and others (n

104). pp.207-209.

Standards for Duty of Care?

2017

123

connection with caffeine. Using a search engine

based lter software it identied 219 relevant

hazardous products sold across 449 web shops

across Europe. The chances that these shops also

sell via large online marketplaces are high. This may

not look massive but considering the complex list

of food additives which are regulated in the EU107

and the international nature of sellers on the big

marketplaces, the problem is likely to be greater.

Authorities have long started ltering marketplaces

on their own initiative. A project in Germany uses

data from tax authorities to identify whether

online shops with food offers have registered with

the authorities. A web crawler operated by tax

authorities has been modied to search for non-

registered food businesses, as well as “high-risk” or

borderline food. According to this study, 40% of food

online retailers had not registered with authorities

in 2014.108 Authorities took concrete action by

agreeing with Germany’s major e-commerce trust

mark certiers that sellers who failed to register with

authorities be denied certication indicating them as

providing a safe shopping experience.109 While online

marketplaces (ISPs) themselves may not qualify as

food retailers in their own right, they potentially

host hundreds or thousands of food offers by third-

party sellers. With the existing legislation in place, a

diligent marketplace operator could for example be

asked to have verication processes in place to check

such registration. This could become even more

important where marketplaces take on distribution

services such as storage and shipping for individual

sellers, and therefore affect the supply chain of the

products themselves (such as done by Amazon or

eBay shipping programme, or other food delivery

platforms). Linking seller recruitment (or on-

boarding) to a verication of local registration and/

or an ofcial trust mark could be one way forward

to proving due care. Moreover, given the detailed

labelling and information requirements imposed by

legislation, both in food and pharmaceutical online

retail, it will be increasingly difcult for a diligent

marketplace operator to claim no actual knowledge

over the products that are sold on their platforms.

A reputable online seller would demand from

its content host and platform operator that their

offer be optimised in a way that allows consistent

display of legally required information. A diligent

marketplace operator would need to give the

107 ‘EU Food Additives Database’

eu/foods_system/main/?event=display> accessed 27 March

2017. and Regulation (EC) No 1333/2008 of the European

Parliament and of the Council of 16 December 2008 on food

additives. Annexes IV and V.

108 Peter Kranz and others, ‘G@ZIELT – Erfahrungen aus zwei

Jahren Kontrolle des Onlinehandels von Lebensmitteln,

Futtermitteln, Bedarfsgegenständen, kosmetischen Mitteln

und Tabak’ (2015) 10 Journal für Verbraucherschutz und

Lebensmittelsicherheit 231. p. 232.

109 Kranz, Harms and Kuhr (n 102).

seller the opportunity to display this information.

Arguably, this would entail awareness of the kind

of information that needs to be displayed in a given

product category and ensue making decisions on

the layout and display of the information online.

This information would necessarily give the ISP

more knowledge and tools to effectively audit for

infringing offers, even in a highly automated context.

III. Non-conforming

electronic products

Consumer electronics are usually subject to CE

marking as a sign that the product conforms with

necessary technical and safety standards. Without

such CE marking products may not be placed on

the EU market. The primary liability for product

conformity and safety lies with the entity that

places the product on the EU market. Depending on

the kind of product, consumer electronics may be

subject to the Low Voltage Directive (LVD), the Radio

Equipment Directive (RED), or the Electromagnetic

Compatibility (EMC) Directives,110 which all require

CE Marking.111 Apart from that, the products are

subject to the provisions of the General Product

Safety Directive (GPSD).112 The GPSD was enacted

in 2001, only one year after the ECD and did not

contain any cross reference to the latter. However

the ECD in Recital 11 applies without prejudice to

the public health and consumer interests laid down

in the (predecessor of) the GPSD.

113

When looking

at the roles platforms play in enabling making

product offers available to a wider public, it could

be argued that they would fall within the scope of

what the GPSD denes as a distributor.114 According

110 Directive 2014/35/EU of the European Parliament and

of the Council of 26 February 2014 on the harmonisation

of the laws of the Member States relating to the making

available on the market of electrical equipment designed

for use within certain voltage limits (recast) 2014., Directive

2014/53/EC of the European Parliament and of the Council

of 16 April 2014 on the harmonisation of the laws of the

Member States relating to the making available on the

market of radio equipment and repealing Directive 1999/5/

EC 2014., Directive 2014/30/EU of the European Parliament

and of the Council of 26 February 2014 on the harmonisation

of the laws of the Member States relating to electromagnetic

compatibility (recast) 2014.

111 Specic requirements relating to CE Marking are laid out

in Regulation (EC) No 765/2008 of the European Parliament

and of the Council of 9 July 2008 setting out the requirements

for accreditation and market surveillance relating to the

marketing of products and repealing Regulation (EEC) No

339/93 2008.”plainCitation”:”Regulation (EC

112 Directive 2001/95/EC of the European Parliament and of the

Council of 3 December 2001 on general product safety 2001.

113 Council Directive 92/59/EEC of 29 June 1992 on general

product safety 1992.

114 GPSD (n 112). Article 2 (f) denes a distributor as any

2017

Carsten Ullrich

124

to the GPSD, a distributor would need to “act with

due care to help to ensure compliance with the

applicable safety requirements, in particular by not

supplying products which they know or should have

presumed, on the basis of the information in their

possession and as professionals, do not comply with

those requirements”.

115

This throws up a potential

conict with the liability provisions in ECD Articles

12-14. It is complicated by the fact that Recital 21

ECD excludes from the scope of the coordinated

eld “Member States’ legal requirements relating to

goods such as safety standards, labelling obligations,

or liability for goods”. In today’s context this is

confusing if one considers the role platforms play in

providing technical means for optimising the display

of information on products. In fact, marketplace

platforms have been approached by market

surveillance authorities with requests to assist in

the identication and removal of non-compliant

products in various regulated product groups.

As indicated above, there is a strong link between

counterfeit products and safety risks. Typical

counterfeit products which pose a risk to safety

are for example chargers for portable devices such

as mobile phones or tablet PCs, or mobile phones

with non-compliant lithium batteries. However,

genuine products may also be subject to safety

and conformity problems, due to manufacturing

errors. Furthermore, there are also products that

are straightforwardly illegal for example due to their

capacity to interfere with the operation of other

devices (i.e. radio jammers). Consumer electronics

are a very difcult market to control: for one, the

regulatory requirements are often specic and

technical; secondly, the product variety is immense

which complicates regulatory risk assessment;

thirdly, technical innovation and fashion trends

foster frequent product replacement; and lastly

there are a number of high value OEM brands which

have facilitated a very lucrative accessories market.

This lends itself to legitimate cheap and innovative

competition, but also to counterfeit and non-

compliant products. In the EU market surveillance

authorities have stirred into action with regards to

the sale of consumer electronics online. In the UK,

Ofcom, the telecoms regulator, in connection with

Trading Standards the local market surveillance

authority, regularly monitors the sites of major

online marketplaces for products in violation of the

RED and EMC Directives and they work with these

platforms on the removal of these products.116 In

professional in the supply chain whose activity does not affect the

safety properties of a product.

115 Ibid. Article 5 (2).

116 Department for Business, Energy & Industrial Strategy,

‘UK National Market Surveillance Programme January

2016 - January 2017’

uploads/system/uploads/attachment_data/le/539110/

Germany, the Federal Network Agency (BNetzA),

which enforces the EMC and RED Directives evaluated

and withdrew over 988,000 products sold via the

internet in 2016 alone.

117

Where it cannot make a

decision from simply viewing the offer on online

marketplaces, such as eBay or Amazon, it conducts

test purchases. Subsequently, it requests takedowns

of the offer and may enforce directly against the seller

by requesting information from the marketplace.

The new focus on online sales has been reected in

the recently recast EMC and RED Directives. Both

Directives included a new Recital, which explicitly

mentions that they should apply to all forms of

supply, including distance selling. Other recent EU

product regulation appears to include e-commerce

more systematically in its scope: in contrast to its

earlier version, the recast Waste Electrical and

Electronic Equipment118 (WEEE) now claries that

distance sellers are subject to the same recycling and

takeback obligations as ofine businesses. It recties

the rst WEEE Directive, that had caused disparity

in the law across member states and unequal

treatment between online and ofine retailers.119

Meanwhile the also recast Directive specifying

energy consumption labelling and information for

energy-related products now explicitly imposes

information and labelling requirements on internet

based sellers.120 While these measures concern a

priori sellers, and not platforms, the effect on the

latter is obvious. As has been shown, surveillance

authorities use large marketplace operators due

to their position as gatekeepers and enablers to

enforce the law and follow up on non-compliant

offers and sellers. For some of the mandatory

information and labelling requirements, platforms

would inevitably act as facilitators of compliance

by providing the technical means allowing the

seller to display statutory information online (as

demonstrated above for labelling requirements with

regards to food or energy consumption labelling).

Cooperation in this area could provide a useful basis

for developing technical quality standards and due

diligence process for the on-boarding of sellers. In

BIS-16-115UKNMSP-UK-National-Market-Surveillance-

Programme.pdf> accessed 17 February 2017. p. 20.

117 Bundesnetzagentur, ‘Statistik Der Marktüberwachung

2016’

Downloads/DE/Sachgebiete/Telekommunikation/

Verbraucher/WeitereThemen/Marktueberwachung/

StatistikMarktueberwachung2016.pdf?__

blob=publicationFile&v=3> accessed 20 March 2017. pp.6-9.

118 Directive 2012/19/EU of the European Parliament and of

the Council of 4 July 2012 on waste electrical and electronic

equipment (WEEE) Text with EEA relevance 2012.

119 Ibid. see for further detail Recital 7.

120 Directive 2010/30/EU of the European Parliament and of the

Council of 19 May 2010 on the indication by labelling and

standard product information of the consumption of energy

and other resources by energy-related products 2010.;

Article 7 specically relates to energy label information

provided through Distance selling and other forms of selling.

Standards for Duty of Care?

2017

125

addition, it is possible to make it mandatory for

sellers to display information required by law and

install processes to screen out non-compliant offers

at an early stage.

29 In 2007, an EU Commission sponsored study on the

Liability of ISPs recommended using standardisation

based on the “New Approach” co-regulatory model

in the area of product safety to tackle the challenge

of content liability on online platforms. According

to this the EU could mandate standardisation

committees to develop due diligence standards

based on available ltering technology, dependent

on the area of infringement. Rights holders and

ISPs would conjointly develop these standards.

ISPs using these standards could eventually rely

on liability defences, while the others could face

“comprehensive ltering injunctions”.121 Economic

efciency theory would see ISPs, which are nearest

to the technical information and most apt to control

access to it, as the “cheapest cost avoider” and therefore

most suitable to administer prevention technologies

based on agreed industry standards.122

Based on this logic, Helman and Parchomovsky

advocated for “best available technology standards”

in the area of copyright infringement prevention.

It would serve as a “technological safe harbour”123

if used by ISPs and it would entirely replace current

safe harbour provisions.124 Alternatively, third party

maintain and develop ltering technology and offer

their services to ISPs.125

Apart from the economic reasoning, however, it

also makes sense from a purely moral standpoint to

involve ISPs more in the infringement prevention

and developing standards for duty of care. As noted

above, their growing role as information gatekeepers

has led to calls for a denition of specic corporate

responsibilities and an ethical framework for ISPs.126

Duty of care principles based on sector specic

standards, it is submitted, could be one cornerstone

of such moral responsibilities.

121 Thibault Verbiest and others, ‘Study on the Liability of

Internet Intermediaries, Markt 2006/09/E’. pp. 20-23.

122 Ibid.

123 Lital Helman and Gideon Parchomovsky, ‘The Best Available

Technology Standard’ [2011] Columbia Law Review 1194.

124 Ibid. Note the authors apply this to the US safe harbour in

125 Ibid. Note that the proposal also tackles the issue of fair use.

126 See Taddeo and Floridi (n 9)., Valcke, Kuczerawy and

Ombelet (n 9)., Vedder (n 6)., Pasquale (n 9).

IV. Horizontal anti-money

laundering compliance

The above assertions can be backed up by yet

another development in the area of due diligence,

which touches on e-commerce companies. In the

recent public consultation on the enforcement

environment of IPRs, rights-holders criticised a

poor implementation of Article 5 ECD citing a lack

of know-your-customer (KYC) obligations applied

to intermediaries.127 While Article 5 ECD refers only

to the information Member States may require of

ISPs, it appears rights holders lament the fact that

intermediaries do not sufciently verify the identity

of their customers (merchants, users, uploaders).

The comment appears to relate to a horizontal

obligation that already applies to nancial

institutions in the EU and across the OECD as part

of anti-money laundering (AML) legislation. In the

EU, nancial and credit institutions are obliged

to apply due diligence measures to customers by

verifying their identity through document checks,

establishing beneciary ownership and conducting

ongoing transaction and client status monitoring

using a risk-based approach.128 Electronic payment

services, some of which are owned by or closely

connected to leading online platforms,129 are covered

by this legislation and hence would perform these

due diligence measures already when on-boarding

merchants. There is so far little ofcial appreciation

or experience in linking due diligence measures

used in AML with risk management in for example

counterfeit detection. However, large e-commerce

platforms may manage the entire payment

transaction process for sellers or content providers

or charge them service or transaction fees using

payment card service providers such as MasterCard

or VISA.130 Linking KYC due diligence from the AML

area with duty of care in the area of e-commerce

for physical goods, where infringement prevention

127 EU Commission, ‘Summary of Responses to the Public

Consultation on the Evaluation and Modernisation of the

Legal Framework for IPR Enforcement’, 14 September

2016,

accessed 25 August 2017. p.17.

128 Directive (EU) 2015/849 of the European parliament and of

the Council of 20 May 2015 on the prevention of the use of

the nancial system for the purposes of money laundering

or terrorist nancing 2015. Article 13.

129 Amazon Payments Europe is registered as an electronic

money institution and Paypal Europe as a credit institution

with the Luxembourg nancial market regulator (CSSF),

while Google Payment Ltd has an E-Money issuer license

with the UK Financial Conduct Authority.

130 J Bruce Richardson, ‘With Great Power Comes Little

Responsibility: The Role of Online Payment Service Providers

with Regards to Websites Selling Counterfeit Goods’ (2014)

12 Canadian Journal of Law and Technology

library.dal.ca/CJLT/article/view/6607> accessed 20 March

2017.

2017

Carsten Ullrich

126

is particularly tricky, could prove a useful tool to

bolster duty of care standards.

D. Conclusion

There is a correct recognition on the part of the

EU that ISPs will need to be asked to bear more

responsibilities for the content they host, especially

when they derive economic gains from it. Both

from an economic and moral perspective this claim

seems justied. The EU legislator is trying to tackle

the challenges posed by the platform economy

and infringing content through a problem-driven,

sectoral approach, while leaving the current

intermediary liability regime of the ECD intact.

The legislative proposal in the area of copyright

however, is ill tted to achieve this. Article 13 of the

current liability regime by potentially disqualifying

a large number of ISPs from the hosting defence

available under Article 14 ECD. Meanwhile, the

quasi mandating of ltering technology just pays

lip service to the general monitoring preclusion

of Article 15 ECD. With ltering technology

becoming indeed increasingly potent, it is moreover

questionable whether it is worth insisting on the

difference between specic preventive ltering

and general monitoring. Then forcing information

sharing duties on intermediaries, which risk

exposing company condential data, would do

more to alienate stakeholders rather than bringing

them together. Nowhere in this draft can we nd the

formerly promoted self- or co-regulatory approach

to form codes of conduct or standards. An alternative

and forward looking proposal, it is submitted, would

replace the current liability regime with a technology

based duty of care standard which could serve as a

safe harbour.131

In the area of child protection, hate speech and

fake news, the EU risks fragmenting its approach

by focussing on VSPs with a similarly restrictive

legislative proposal, while promoting purely self-

regulatory efforts for non-audiovisual content. The

newly proposed Article 28a engages in a similar

squaring of the circle attempt with regards to

infringement prevention as does the proposed

of VSPs lose their hosting liability exemption.

Technology, it is suggested, is about to erase the

dividing between specic and general prevention.

The use of ERGA may help to promote new codes

131 As for example suggested in Verbiest and others

(n 121).

of conduct and standards, but the efforts need to

cover the entire ISP sector in the area of hate speech

and child protection in a consistent form. It will be

even more effective if ISPs are encouraged to share

their knowledge through the propagation of “Good

Samaritan” principles.

Meanwhile political developments appear to drive

national policy action in the area of fake news and

hate speech. This area demonstrates the change

in perception of the role online platforms play

as gatekeepers and power brokers when it comes

to access to information and speech. Political

voices have been blunter when pinning down

the responsibilities and threatening enforcement

action against platforms failing to react quickly to

remove and prevent infringing content regarding

hate speech and so-called fake news. Although

the true impact of fake news is not proven, it is

encouraging that codes of conduct are being dened

and that third party, independent co-regulatory

mechanisms are used to screen online content.

However, asking platforms to react independently

to “obviously” infringing content in addition, and

without detailed recourse mechanisms in place,

risks giving way to private censorship. The same

risk applies to all of the sectoral areas mentioned

above, as it is not clear how codes of conduct (if at

all encouraged) are being reviewed and tested for

their impartiality. This is even a greater risk for the

area of trademark infringements, where, despite

the EU’s self-professed problem-driven approach,

no concrete policy action has been proposed. The

current self-regulatory effort promoted through

the Memorandum of Understanding on the sale of

counterfeit goods via the internet has so far brought

little progress. In an area where infringement

detection is particularly difcult to master, a

rmer grip by the EU Commission to promote and

develop technical standards and risk management

approaches would be welcome. Experience could

be gained from the area of anti-money laundering

compliance where mandated customer due diligence

obligations exist.

The area of product regulation serves as a good

example for the kind of independent, third party

monitoring and standard setting that could help

building knowledge and develop duty of care

technical standards for combatting infringements.

For example, the development of certication

for online pharmacies gives market platforms a

concrete tool they can apply when on-boarding new

sellers and preventing the sale of fake medicines.

Similarly, standards for labelling, online product

display, and company registration in various areas

(food, electronic products) can constitute means for

platform operators to apply due diligence in seller

Standards for Duty of Care?

2017

127

on-boarding and product verication. These could

develop into concrete Government and industry

mandated due diligence standards. However, overly

relying on self-regulatory industry agreement

between rights-owners and powerful platforms

risks restricting rather than promoting diversity

and expression on online platforms.

It is submitted that a new approach, recognising

the moral and economic arguments for increased

responsibilities of ISPs is needed, resulting in an

ethical framework or corporate social responsibilities

for information gatekeepers.

132

The cat and mouse

game of ex-post versus ex ante and specic versus

broad monitoring provisions could be replaced

by technology based duty of care safe harbours

which relate to specic areas of infringement. As

online platforms transform more and more areas

of previously ofine economy sectors, it may be

time to take some lessons from the ofine world

regarding regulation and apply them to ISPs. It could

be a way to achieve the EU’s vision of a “responsible

behaviour of platforms to protect core values”.

133

Coming back to 1995, the thread of standardisation

certainly needs to be taken up, but it could be that

internet intermediary regulation itself may fade

into sector specic rules, with just an overarching,

horizontal commitment towards using the best code

available as a standard to contain risk.

† This paper was prepared for the 2017 Annual Conference

of the British and Irish Law, Education and Technology

Association (BILETA) held in April 2017 at the University

of Minho, Braga, Portugal, where it won the award of the

BILETA Executive Committee.

132 Taddeo and Floridi (n 9).

133 EU Commission, ‘COM(2016) 288 Final’ (n 14). p. 5.

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
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Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

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Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Standards for Duty of Care? Debating Intermediary Liability from a Sectoral Perspective

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users