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

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.