Uniformity v. Diversity of Internet Intermediaries? Liability Regime: Where does the ECJ stand?

AuthorSophie Stalla-Bourdillon
PositionLecturer in IT/IP law University of Southampton.
Pages51-61
JICLT
Journal of International Commercial Law and Technology
Vol. 6, Issue 1 (2011)
51
Uniformity v. Diversity of Internet Intermediaries’ Liability Regime:
Where does the ECJ stand?
Sophie Stalla-Bourdillon
Lecturer in IT/IP law
University of Southampton,
S.Stalla-Bourdillon@soton.ac.uk
Abstract. This paper seeks to determine the scope of the ECJ’s decision of 23 March 20 10
and its impact upon the laws o f Member state. Thereby it atte mpts to stress the different sources of
conflicts that can arise when national judges have to deal with the tricky issue of Internet
intermediaries’ liability. At the same time this paper tries to give a sense of what is the institutional
function of European private law in a multilevel system of governance. Whereas the first begins
with examining the means used by the Court to bring national laws closer trough a uniform
interpretation of key European pr ovisions, the second part highlights the significant regulatory
leeway granted to Member states. This leeway explains why horizontal and diagonal conflicts are
likely to persist until a constr uctive inter-normative dialogue between national courts ta kes place,
following in step with traditional top down method of harmonisation.
1. Introduction
Formalism is sometimes seen as a way to enhance the legitimacy of a decision-making process
1
. But within a
legal order tha t is sectorial and multi-level, formalism can blur the message of the decision-maker, in particular
when the balance of the interests at stake is difficult to strike. In cyberspace, the quid p ro quo between freedom
of expr ession, freedom of commerce, and intellectual property rights is still hotly debated . Despite the recent
intervention of the European court of justice (ECJ) in the joint cases C-236/08, C-237/08 and C-238/08
2
, it is not
sure that national judges have b een offered clear guidelines as regards the manner of comprehending t he conduct
of Internet intermediaries.
Truly, it is vain, positively and normatively, to wait for uniformization of law through t he pro cess of
harmonisation. “European law is legitimated to instigate innovation and change, to organize diversity, and to
ensure the compatibility of d iversity with Community concerns—its vocation is not to produce uniformity”
3
.
Still European law should ai m at solving horizontal con flicts be it through vertical pre-emptive effects
4
or
horizontal allocation of Member states competences as well as vertical a nd “diagonal conflicts”
5
. Yet, one could
This paper was originally published in Kierkegaard, S. (2010) Private Law: Rights, Duties & Conflicts.pp.410-422
1
C
HRISTIAN
J
OERGES
, The challenges of Europeanization in the realm of private law: a plea for a new legal discipline, 14
Duke Journal of Comparative & International Law 149, at 172 (2004).
2
ECJ, 23 March 2010, joined cases Case C-236/08, Google France SARL, Google Inc. v. Louis Vuitton Malletier SA ; Case
C-237/08, Google France SARL v. Viaticum SA, Luteciel SARL ; Case C-238/08, Google France SARL v. Centre national
de recherche en relations humaines (CNRRH) SARL, P.-A. Thonet, B. Raboin
3
J
OERGES
, at 195.
4
Pre-emption “à l’européenne” is more flexible than classical pre-emption. S.
R.
W
EATHERILL
, Pre-emption, harmonisation
and the distribution of competence to regulate the internal market, in The law of the single European market, unpacking the
premises, (C. Barnard & J. Scott eds., 2002), at 41 ff; S
IMON
D
EAKIN
, Lega l diversity a nd regulatory co mpetition: which
model for Eu rope?, 12 European Law Jou rnal 440, at 452 (2006). See also R
OBERT
S
CHÜTZE
, Supremacy without pre-
emption? The very slowly emergent doctrine of community pre-emption, 43 Common Market Law Review 1023 (2006).
5
In the words of C. Joerges, “It is typical in the European Union th at the European level is competent—sometimes even
exclusively—to regulate one aspect of a problem, whereas Member States remain competent to regulate another. A s a result,
the term “diagonal conflict” is useful to distinguish such constellations from “vertical” conflict resolutions where
Community law trumps national law on the one hand, and from “horizontal” conflicts which arise from differences M ember

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