Chairs: Miquel Peguera. Professor, School of Law and Political Science (UOC).
Gerald Spindler. Professor of Civil Law, Commercial and Economic Law, Comparative Law, Multimedia- and Telecommunication Law at the University of Göettingen (Germany).
Liability of ISP providers – recent developments in the EU
Liability Privileges and injunctions:
- Art. 12 E-Commerce-Directive – Access Provider.
- Art. 13: Caching.
- Art. 14: Host-Provider.
- Art. 15: monitoring duties.
Strong debate whether injunctions, or client monitoring is or is not covered by the law. There are some monitoring obligations, subject to specific content and specific infringements. But the role of freedom of speech has to be preserved, including commercial speech.
Host providing and Neutrality: more than file sharing, the problem now is file hosting. Related to neutrality, e.g. the German High Federal Court forces to distinct between third party content and own content, being liability conditioned to whether the content is a third party’s or not, or if the hosting provider does know whether the content is legal or not.
Host providing and knowledge: obligation to contact the rightholder/injunction claimant in case of doubts. Still not clear, though.
Monitoring duties of the access provider: there is none, the access provider does not need to monitor the uses. Indeed, users have their privacy protected. But law has been evolving and granting some access providers the right (or the obligation…) to block some content (e.g. websites) guaranteeing that a proper balance of constitutional rights (provider, rightholders, users) is regarded.
Injunctions and social networking sites and blogs: the provider is obliged to notify the blogger of a claim, and if the blogger does not react, the provider has to take down the message; if the blogger reacts, it is up to the claimant if she pursues her claim, and to the provider to decide if the message will be taken down. So far, there are no monitoring obligations of the provider for the future.
Perspectives: anonymity and identification. Enforcement needs identity data of the infringer: how can you claim liability if you do not know the identity of the infringer? There is a conflict between disclosure of identity data of users and data protection, between anonymity and liability of intermediaries. On the other hand, should anonymizers be liable for enabling the anonymity and thus makes liability more difficult?
Hadopi Law is (clearly) against many constitutional rights, but the other option, a notice-and-take-down approach may not be a solution for many issues (is definitely not a solution for repeated infringements, as it always acts ex-post).
Conflicts of laws: intellectual property rights and trademarks; unfair competition; personality rights and privacy; how can the level of protection of jurisdictions be compared…
Discussion
Q: what about the case of Google and the right to be forgotten? Spindler: there has always been a conflict between media to inform and the protection of privacy. And this conflict has now extended to social networking sites and Google itself. It seems fair to hold back this extension of “the right to inform” so that it does not steps too much upon the right to privacy.
Miquel Peguera: now, the cost of defending intellectual property rights falls upon the rightholders. But access providers benefit, indirectly, from the exploitation of these rights. Should they contribute to detect infringement (and thus contribute in supporting the burden of the costs)? Spindler: They maybe should, but it is not straightforward.
