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

• Author: Sophie Stalla-Bourdillon
• Position: Lecturer, University of Southampton
• Pages: 154-175

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154

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

Lecturer

University of Southampton

S.Stalla-Bourdillon@soton.ac.uk

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

1

,

the Committee of the judiciary of the US House of representatives was preparing to conduct a hearing

2

on the

“Stop Online Piracy Act” (SOPA)

3

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

4

and internet advertising services

5

) 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

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. 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

1

http://www.nytimes.com/2011/12/09/world/at-hague-hillary-rodham-clinton-urges-countries-not-to-restrict-

internet.html?_r=1

2

http://judiciary.house.gov/hearings/mark_12152011.html

3

H.R. 3261, http://judiciary.house.gov/issues/issues_RogueWebsites.html

4

§101(21).

5

§101(12).

6

§103.

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155

again that the protection and promotion of free speech is advocated simultaneously with the involve ment of

Internet intermediaries

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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

commerce

8

, 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

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(the infosoc Directive) and

the Directive 2004/48/EC on enforcement of intellectual prop erty rights

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.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”

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.

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

7

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

ETH

F.

K

REIMER

, 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

upon.

8

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.

9

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.

10

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.

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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.

See http://ec.europa.eu/internal_market/iprenforcement/stakeholders_dialogues_en.htm.