Sometimes one is not enough! Securing freedom of expression, encouraging private regulation, or subsidizing Internet intermediaries or all three at the same time: the dilemma of Internet intermediaries' liability

AuthorSophie Stalla-Bourdillon
PositionLecturer, University of Southampton
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Sometimes one is not enough! Securing freedom of expression,
encouraging private regulation, or subsidizing Internet intermediaries or
all three at the same time: the dilemma of Internet intermediaries’ liability
Sophie Stalla- Bourdillon
University of Southampton
Abstract. Riding too many horses at the same ti me without having identified in the first
place the precise direction to follow cannot bring the rider very far. Yet this is what might happen
in the field of Internet intermediaries’ liability if the initial premises as well as their implications
are not made clearer at the policy level and if the legal rules meant to implement them are not
construed accordingl y and consistently when applied in practice on a case -by-case basis. Indeed,
three (and not one) rationales can be extracted from the text of the Directive on e-commerce and
its provisions regarding the l iability of intermediary provi ders: securing freedom of expression,
encouraging content regulation the initiative of which should come from Internet in termediaries as
well as promoting the growth of the single d igital market by subsidizing private actors having a
key role in the innovation process; hence, the dilemma of Internet intermediaries’ liab ility and the
re-emergence of divergences at Member state level. In an attempt to clarify the terms of the
debate, the purpose o f this article is therefore to deconstruct the European system of liability
exemptions for Internet intermediaries and shed light upon its fundamental assumptions and
corollaries in order to appraise the appropriateness of the solutions that have recently been adopted
both at supra-national and national levels.
1. Acceptability and Justification of Copyright Law
While the US Secretary o f State was giving a speech in a conference on digital freedom sponsored by Google
and the Dutch government warning t he audience that restrictions on the Internet threatened fundamental
freedoms and human rights as well as international co mmerce and more generally the free flow of infor mation
the Committee of the judiciary of the US House of representatives was preparing to conduct a hearing
on the
“Stop Online Piracy Act” (SOPA)
presented as a necessary tool in order to modernize US criminal and civil
statutes to meet new IP e nforcement challenges and protect American jobs. If adopted, the SOPA would make at
the disposal of right holders several tracks to combat piracy in the digital world and in particular would allow
them to require through the means of complying notifications two types of i ntermediaries (payment network
service providers
and internet advertising services
) to take technically feasible and reasonab le measures, as
expeditiously as possible, either to prevent US users to complete transactions with or provide advertisements to
Internet sites that are dedicated to theft of U.S. proper ty
. The purpose of this chapter is not to comment upon t he
state of US law -although it is certainly useful to compare Europ ean and US law. It is interesting to note once
H.R. 3261,
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again that the protection and promotion of free speech is advocated simultaneously with the involve ment of
Internet intermediaries
in the fight against piracy.
On the other side of the Atlantic, Internet inter mediaries have long been deemed key actors of the single
digital market. But because fundamental competing i nterests are at stake and need to be balanced and because
striking the balance was beyond the ambition of the drafters of the Directive 20 00/31/EC on electronic
, it is audacious to infer one univocal ratio legis from this legislative instrument even if it must be
read together with the Directive2001/29/EC on copyright in the information society
(the infosoc Directive) and
the Directive 2004/48/EC on enforcement of intellectual prop erty rights
.This explains in part why the European
legal framework lies upon at least one central dile mma: how can one promote freedom of expression while
expecting Internet intermediaries to take the initiative to police their systems or networks and in particular to
react upon infringements of Intellectual Property (IP) rights.
In its anal ysis of t he application of the Directive on enforcement in the Member States the EU Commission
stressed at the end of 2010 that
“[i]n many cases, (…) intermediaries (…) have ad opted comprehensive policies o n the
protection of intellectual property rights which are clearly spelled o ut on their sites. These
policies include sanctions for users which b reach the rules, in p articular for the repeat
infringers, comprehensive notice and take-do wn processes and other tools that allow a timely
elimination o f illegal offers, the sharing of information with rightholders and reimbursement
schemes for consumers who unintentionally bought counterfeit goods on their site. All these
measures have been applied without affecti ng the liability status of the inter mediaries and have
significantly contributed towards the elimination of counterfeiting o n the Internet”
Although it may be true that the policing by Internet intermediaries of their systems or networks has
contributed towards the elimination of counterfeiting on the Internet, the foregoing affirmation appears to b e a
bold statement in t he light of t he recent case law of the Cou rt of Justice of the European Union (CJEU): when it
comes to the liability re gimes of Internet intermediaries the Europ ean legal framework is much more intricate.
This is true for at least two reasons. First it is not sure that t he current solutions have been adopted to give
Internet intermediaries ince ntives to take the initiative to police their networks and systems. This is all the more
true that it has been argued that the right and ability to control the activities o f one’s users are considered
Internet intermediaries can perform a variety of activities which range from providing access to the Internet itself to offering
tools to locate information or to organize and communicate information to others. This is from the perspective of end users.
From the perspective of public authorities seeking to enrol Int ernet intermediaries as proxy c ensors the category of Internet
intermediaries is potentially very rich as explained by S
, Censorship by proxy: the first Amendment, Internet
intermediaries, and the problem of the weakest link, 155 University of Pennsylvania La w Review (2006). at 16-17.
Consequently any type of direct electronic link between end users or providers of ancillary services, which make Internet
access effective, such as payment network service providers, as well as servi ce providers offering directories, may be relied
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'), OJ L 178,
17.7.2000, p. 1–16.
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, 22.06.2001, p. 10 –19.
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, 30.4.2004, p. 45–86.
Analysis of the application of Directive 2004/48/EC on the enforcement of intellectual property rights in the Member
States (SEC(2010) 1589) p. 15. This understanding has however paved the way to the use of soft law rather than hard law to
deal with the problem of Internet intermediaries ‘liability as the adoption of the Memorandum of Und erstanding on the sale
of counterfeit goods over the Internet. On 4 May 2011 the European Commission has encouraged stakeholders including anti-
counterfeiting organizations, leading right holders and trade associations and Internet platforms such as Amazon and eBay
sign a non-binding Memorandum of Understanding to help reduce the sale of counterfeits via e-commerce platforms.

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