Volume 48 (2011) / Issue 5
Internet access providers, online platforms and other intermediaries benefit from a protection against liability claims caused by end-users' illegal or harmful information. This liability limitation is enshrined in the 2000 Directive on Electronic Commerce, a directive considered crucial for a proper functioning of the internal market, the uptake of the information society and the protection of freedom of speech.
Throughout the years, the liability protection for online intermediaries seems, however, to have been gradually carved out by case law, particularly on the Member State level. In recent cases, such as C- 236/08, Google France, and C-324/09, L'Oréal, the European Court of Justice has also interpreted relevant EU legislation. Online intermediaries are increasingly forced to monitor the activities of their users if they want to remain shielded from liability. Paradoxically, obliging online intermediaries to monitor the information transmitted or stored by users is forbidden by the same Directive on Electronic Commerce.
This article proposes a balanced approach in which the intermediary protection regime can be safeguarded, whilst still protecting the rights of third parties whose rights may be infringed on the internet.
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