The MARQUES Cyberspace Team shares news of an update to its paper on ISP liability

In the online world of file sharing, search engines, internet auction platforms and social networks, the protection of trade marks and copyright has become an increasingly difficult and multi-faceted issue. Evermore questions are arising on a yearly basis as to where one draws the line of liability of internet service providers.

The MARQUES Cyberspace Team has attempted to bring some light into the dark with the newest update to its paper “Overview on the jurisdiction on liability of Internet Service Providers (ISPs)”. MARQUES members can read and download the paper here.

The paper gives an overview on the guidelines laid down by the CJEU, as well as those of the main jurisdictions in Europe, on the liability of host and access providers and the actions which may be required from them upon discovering infringements.

By consolidating the most recent CJEU and national court decisions in relation to the liability of ISPs, the Team has created a systematic overview of interesting developments and questions these decisions raise.

For instance, whilst ISPs may be held liable for third-party infringements if they do not react upon becoming aware of them, there is no general obligation for them to actively investigate and monitor the data of their customers, thereby prohibiting infringements from occurring in the first place. On the other hand, European law does not conflict with an obligation imposed by national courts to prevent further similar infringements arising from one specific third-party violation.

Moreover, in particular with regard to internet access providers, questions have been raised whether such intermediaries may be ordered to block the access of its customers. This could lead to a general monitoring obligation, which is currently prohibited by EU law. Nevertheless, the CJEU and some national courts have held such blocking injunctions to be lawful in specific cases.

Also Brussels is trying to shift more responsibility to access providers in the fight against (copyright) platforms such as Google and Facebook shall be obliged to use filter systems to check content for infringements before it is published on their platforms (so-called upload filters). Trilogue negotiations are continuing, but have been temporarily stalled after talks scheduled to resume on Monday, 21 January 2019 were postponed for an indeterminate time.

Meanwhile, you might be interested in reading the detailed examination of the rulings of the CJEU on intermediary liability and the various national decisions (i.e. Germany, Netherlands, UK, Denmark, Sweden) in this regard.

This is an ongoing project, and MARQUES members are invited to contact the Team with details of other countries to include.