Internet Intermediaries as Responsible Actors? Why It Is Time to Rethink the E-Commerce Directive as Well

Stalla-Bourdillon, Sophie

doi:10.1007/978-3-319-47852-4_15

Sophie Stalla-Bourdillon⁵

Part of the book series: Law, Governance and Technology Series ((LGTS,volume 31))

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5 Citations

Abstract

The purpose of this chapter is twofold. First, it aims to show that there is a need to review Articles 12 to 15 of the e-Commerce Directive for at least two reasons: the e-Commerce Directive does not harmonise the conditions for holding intermediaries liable (but only the conditions for exempting Internet intermediaries from liability) and recent case law both at national and European levels, e.g. Delfi v Estonia, shows that divergences still persist among Member States; in addition, Article 15 has become an empty shell despite L’Oréal v eBay, Scarlet v Sabam and Sabam v Netlog.

Second, this chapter suggests that if a review is not possible, the very rationale of Articles 12 to 15 and thereby their interpretation should be rethought. Indeed, the rationale said to underlie Articles 12 to 15– and used by the CJEU to determine the domain as well as the effects of these Articles – is ill-suited to the complexity and diversity of intermediary activities given the current trend towards more ‘voluntary’ (or better ‘suggested’) intervention. What is needed is a test that would ensure that control measures put in place by Internet intermediaries are protective of both Articles 10 and 8 of the ECHR and their equivalents within the EU Charter of Fundamental Rights.

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Notes

1.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Digital Single Market Strategy for Europe, Brussels, 6.5.2015, COM(2015) 192 final (Digital Single Market Strategy). See also Commission Staff Working Document, A Digital Single Market Strategy for Europe -Analysis and Evidence SWD(2015) 100 final. After the submission of this paper the Commission issued a new Communication on ‘Online Platforms and the Digital Single Market -Opportunities and Challenges for Europe COM(2016) 288/2 on 25 May 2016 followed by the released of a Code of Conduct on Conduct on Countering Illegal Hate Speech Online on 31 May 2015, http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf, accessed 9 July 2016 (Code on illegal hate speech). For a review of the main features of the new Communication in relation to intermediary liability see Stalla-Bourdillon 2016.
2.
Ibid, p. 3.
3.
Ibid, p. 3.
4.
Ibid, pp. 3-4.
5.
Ibid, pp. 3-4.
6.
This term is defined in the consultation following the issuance of the Commission’s Communication and the Staff Working Document in the following: ““Online platform” refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups”. European Commission, Consultation on Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy, 2015, https://ec.europa.eu/eusurvey/runner/Platforms/, p. 5, accessed 17.05.2016. After the submission of this paper, a slightly revised definition was proposed in the Commission’s communication on online platforms of 25 May 2016.
7.
Ibid, p. 5.
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, pp. 1–16 (e-commerce Directive).
9.
Recital 48 reads as follows: “This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities”.
10.
Digital Single Market Strategy, p. 12.
11.
Ibid, p. 12.
12.
I used the expression ‘intermediary Internet service providers’ in 2010 to cover both Internet service providers and over-the-top service providers as the expression ‘Internet service provider’ was too much linked to that of Internet access providers. See S. Stalla-Bourdillon, Chilling ISPs… when private regulators act without adequate public framework. Computer Law & Security Review, 26, (3), 290–297 (2010a), p. 291. It would seem that the intention of the Commission was the same.
13.
This public consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy ran from 24 September 2015 to 6 January 2016 and first brief results of the public consultation were published on 26 January 2016, https://ec.europa.eu/digital-single-market/en/news/first-brief-results-public-consultation-regulatory-environment-platforms-online-intermediaries, accessed 17 May 2016.
14.
Ibid, p. 12.
15.
ECtHR, Grand Chamber, Delfi AS v. Estonia, 16 June 2015, Application no. 64569/09, [2015] E.M.L.R. 26. The Delfi case was distinguished by the Fourth Section of the ECtHR in the case of Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, 2 February 2016, Application no. 22947/13 (MTE). While the Fourth Section often refers to Delfi, it does seem that the approach taken by the judges in MTE is not the same as the approach taken by the Grand chamber in Delfi. The Fourth Section insisted in particular on the implications of holding Internet portals liable for third party content in terms of monitoring. The Fourth Section stated that this would amount “to requiring excessing and impracticable forethought capable of undermining freedom of the right to impart information on the Internet”. MET, at [82]. In this sense MTE could be seen as an attempt to narrow down the scope of the solution adopted in Delfi.
16.
CJEU, Grand Chamber, Case C-324/09 L’Oréal SA and Others v eBay International AG and Others, 12 July 2011, ECLI:EU:C:2011:474.
17.
CJEU, Third Chamber, Case C-70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), 24 November 2011, ECLI:EU:C:2011:771.
18.
CJEU, Third Chamber, Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, 16 February 2010, ECLI:EU:C:2012:85.
19.
Opinion of Advocate General Poiares Maduro delivered on 22 September 2009 in Joined Cases, Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and Luteciel SARL (C-237/08) and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others (C-238/08), ECLI:EU:C:2009:569, at [143].
20.
CJEU, Grand Chamber, Joined cases Joined cases C-236/08 to C-238/08, Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and Luteciel SARL, 23 March 2010, ECLI:EU:C:2010:159.
21.
Ibid, at [114].
22.
CJEU, Grand Chamber, Case C-131/12, Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, 13 May 2014, ECLI:EU:C:2014:317, at [33] (Costeja).
23.
The fact is that at least since 1995 the impact of intermediary liability regimes was considered significant for the future development of information society services. See the Green Paper on Copyright and Related Rights in the Information Society, COM (95) 382 final, § 49. Hence, the need not only to harmonise in order to create a single system for concrete and predictable applications, but also to establish a conflict rule for the coordinated - not harmonised - domain which ensures the application of a single law.
24.
Applicable regardless of the nature of the interests violated.
25.
PL 105-304 (HR 2281) 28 October 1998 as codified in 17 U.S.C. §512.
26.
At a time when the European authorities are working on the issue of intermediary liability, the German system is based on a tripartite distinction between three types of actors with distinct activities: the content provider, the hosting provider and the access provider.
27.
See the Defamation Act of 1996. It should be noted that if this law is sectoral, in this instance the criterion for the implementation of intermediary liability was also that of awareness of the illegal activity.
28.
The e-Commerce Directive was then anticipated by a 2000 Act (Loi n° 2000-719, 1^er août 2000).
29.
France was one of the countries where the case law was the most verbose on the matter.
30.
Such an extension was however heavily criticised by legal commentators (Zeno-Zencovich 1998, 1999, Sica 2001).
31.
Obviously, divergences also started to appear within the same jurisdiction. For an overview of the state of the law up until 2007 see Van Eecke and Ooms 2007.
32.
See e.g. T. com. Brussels, 7^th chamber, 31 July 2008, n° A/07/06032, Lancôme Parfums & Beauté & Cie v eBay International AG, eBay Europe SARL, eBay Belgium, Comm. Com. Electr. 2009, étude 4, A. Regniault and F. Guthfreund-Roland.
33.
T. com., Paris, 1^st chamber, B, 30 June 2008, Parfums Christian Dior and others v eBay Inc., eBay International AB AG,www.legalis.net ; T. com., Paris, 1^st chamber, B, 30 June 2008, Christian Dior Couture v eBay Inc., eBay International AG, www.legalis.net ; T. com., Paris, 1^st chamber, B, 30 June 2008, Louis Vuitton Malletier v. eBay Inc., eBay International AG, www.legalis.net. The Court of Appeal and the Supreme Court (Cour de Cassation) subsequently agreed with the Tribunal as regards the characterisation of eBay’s activity. See e.g. Cour d’appel de Paris, Pole 5, ch. 2, 3 Septembre 2010, eBay v Parfums Christian Dior and others, www.legalis.net and Cour de cassation, civile, Chambre commerciale, 3 May 2012, 11-10.508, Bulletin 2012, IV, n° 89.
34.
Google, at [120].
35.
Here is the exact wording of the first two paragraphs of Article 14: “1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider”.
36.
eBay, at [120].
37.
“The operator plays such a[n active] role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them”. eBay, at [123].
38.
Google, at [118].
39.
The first national decisions were issued in 2006 in this case.
40.
Delfi, at [31].
41.
Ibid, at [31].
42.
See Van Eecke’s plea for a balanced approach (Van Eecke 2011), who reviews national cases and argues that the monitoring of users’ activities should not prevent internet intermediaries from benefiting from Articles 12 to 14 of the e-Commerce Directive.
43.
For a definition of the coordinated field, see Article 2(h) of the e-Commerce Directive.
44.
Traduction from the author.
45.
Traduction from the author.
46.
See on these questions, Stalla-Bourdillon 2010b, pp. 319 ff.
47.
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data OJ L 281, 23/11/1995.
48.
The following of this section builds upon the author’s blogpost (Stalla-Bourdillon 2015).
49.
It is worth comparing the words of the CJEU with those of the French Supreme Court in a criminal case involving the ‘Google suggest’ functionality. C.Cass, 1 civ., n° 12-17.591, 19 June 2013 (12-17.591), ECLI:FR:CCASS:2013:C100625.
50.
Costeja, at [88]. Could the CJEU have reached the same solution without characterising Google as a data controller? Looking at the way the Spanish Court had formulated its questions in its reference for a preliminary ruling and their respective order, it seems that only if Google was a data controller would it then have been possible to recognise a legal obligation upon it to delist.
51.
Ibid, pp. 31 – 50.
52.
Costeja, at [70].
53.
Article 6 of the Data Protection Directive is also problematic. Under this article, the data controller has to make sure that data quality principles are also complied with. Some then say that it does not make sense to characterise Google as a data controller because the principle of data minimisation does not work when applied to the activities of search engines. Nevertheless, it might be argued that the obligation to delist is the very means by which a search engine can comply with the principle of data minimisation.
54.
Article 23(2) provides that “The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage”.
55.
Mosley v Google Inc & Anor [2015] EWHC 59 (QB).
56.
Article 29 Data Protection Party, Guidelines on the implementation of the Court of Justice of the European Union Judgement on “Google Spain and Inc. v Agencia Espanola de Proteccion de Datos (AFPD) and Mario Costeja Gonzales” C-131/12 WP 225, p. 7.
57.
Mosley at [45]. A Spanish Court also seems to be of the view that both Directives should be read together. JUZGADO PRIMERA INSTANCIA 8 BARCELONA, 17 July 2014, ROLLO n° 99/2012-A. For a comment see Peguera 2014.
58.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119, 4.5.2016, pp. 1–88. Recital 21 simply states that: “This Regulation is without prejudice to the application of Directive 2000/31/EC of the European Parliament and of the Council, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. That Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between Member States”. See also Article 2(4) of the General Data Protection Regulation.
59.
Google, at [120].
60.
See the last paragraphs of Article 12 to 14 of the e-Commerce Directive.
61.
See e.g. Mr. Justice Arnold’s long list of blocking injunction cases and, in particular, the first one, Twentieth Century Fox Film Corp v BT [2011] EWHC 1981 (Ch) (Newzbin 2). See also Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others (No.2) [2012] EWHC 1152 (Ch); EMI Records Ltd and others v British Sky Broadcasting Ltd and others [2013] EWHC 379 (CH); Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch) (Cartier) confirmed by the Court of Appeal in Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2016] EWCA Civ 658.
62.
See e.g. the French case brought by Mosley against Google: TGI Paris, 17e ch., 6 November 2013, RG 11/07970, Max Mosley v Google Inc & Google France, http://droitdu.net.
63.
Google, at [111].
64.
Google, at [118].
65.
Delfi, at [30].
66.
It is true that such a solution might have been forced upon the judge, since Delfi was arguing that it was a speaker and that making it financially liable in such a case would amount to a breach of its freedom of expression.
67.
The French Dailymotion case is interesting in that the Court of Paris characterises Dailymotion as a hosting provider after having found that the moderation activity undertaken by the service provider is always triggered by user complaints. CA Paris, 2 December 2014, TF1 et autres c/ SA Dailymotion, www.legalis.net. Yet, it is not clear why if a content is manifestly unlawful and the service provider has actual knowledge of it, the latter should wait for a user’s complaint.
68.
See Cartier, at [188].
69.
See Cartier, at [167].
70.
CJEU Case-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH ECLI:EU:C:2014:192.
71.
Telekabel, at [57].
72.
MTE, at [91]. Case mentioned at fn 16.
73.
Unless the judiciary is reactive enough (as well as low-cost) so that it can handle a great number of complaints simultaneously and in a timely fashion. Privately managed notice-and-take-down-systems as opposed to court orders should therefore be considered as second-best solutions and serious thoughts should be given to the creation of accessible ad hoc judiciary institutions.
74.
Some commentators criticised Article 14 of the e-Commerce Directive for this very reason right after its adoption (see e.g. Montero 2001, p. 287).
75.
Notice-and-take-down procedures could be used for exact reproductions of copyright works for example. See Pei Zhang, Sophie Stalla-Bourdillon and Lester Gilbert, A Content-Linking-Context Model for “Notice-and-take-down” Procedures, ACM Web Science Conference, 2016. See also the second and third studies conducted by Urban, Karaganis, and Schofield who found high number of questionable notices in their second and third studies (Urban, Karaganis and Schofield 2016).
76.
“INHOPE is an active and collaborative network of 51 hotlines in 45 countries worldwide, dealing with illegal content online and committed to stamping out child sexual abuse from the Internet”. For more information, see www.inhope.org.
77.
See e.g. the US 2004 decision in Center for Democracy and Technology v. Pappert 337 F. Supp. 2d 606 (2004). Notably, the US court considered DNS blocking, IP blocking and URL blocking and concluded that the implementation of the Pennsylvania’s Internet Child Pornography Act would have led to the overblocking of innocent speech in violation of the First Amendment to the US Constitution, even if the court ascknowledged that “URL filtering results in the least amount of overblocking” at [143]. Today, solutions such as PhotoDNA (released by Microsoft), which consists in hashing and converting images into numerical values that are matched against databases of hashes derived from known illegal images, are now used in the US. Yet, both in Sabam and Netlog it was precisely solutions of the latter type that were at stake (i.e. CopySense by Audible Magic). See Stalla-Bourdillon 2013.
78.
Which is not what the Code on illegal hate speech does (see fn 2).
79.
See Urban, Karaganis, and Schofield 2016, p. 38 who notes that “[f]or several OSPs, attempting to identify allegedly infringing material based on imprecise location pointers represents the most challenging and resource-intensive aspect of takedown”. With this said, national judges have not always been of this view. See e.g. TGI Paris, 3e ch., 2e section, 10 July 2009, Bayard Presse c/ YouTube LLC, www.legalis.net; Tribunale Civile di Roma Sentenza n. 8437/2016, 27 April 2016, R.T.I c/ TMFT Enterprises, LLC – Break Media. For a comment see Rosati 2016.
80.
Advocate General Opinion of 16 March 2016, Case C-484/14 Tobias Mc Fabben v Sony Music Entertainment Germany GmbH.
81.
By way of example no contextual assessment of this type was undertaken in the French Dailymotion case. Case mentioned at fn 68.
82.
In this case, the French Tribunal ordered Google to stop referencing in its listings nine pictures of Max Mosley for a period of five years. Case mentioned at fn 63. Notably, while the French Supreme Court (Cour de Cassation) rejected the validity of stay-down obligations triggered by the reception of private notices in Cour cass, 1er civ,. case n° 827, 12 July 2012 (11-15.165 ; 11-15.188), ECLI : FR : CCASS : 2012 : C100827, court orders can contain obligations of this type.
83.
2002 No. 2013.

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Sophie Stalla-Bourdillon

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Stalla-Bourdillon, S. (2017). Internet Intermediaries as Responsible Actors? Why It Is Time to Rethink the E-Commerce Directive as Well. In: Taddeo, M., Floridi, L. (eds) The Responsibilities of Online Service Providers. Law, Governance and Technology Series, vol 31. Springer, Cham. https://doi.org/10.1007/978-3-319-47852-4_15

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