The MARQUES Cyberspace Team has published the latest update to its paper on ISP liability. Gabriele Engels introduces it.

Advocate General’s Opinion

In light of the recent opinion published by the Advocate General of the CJEU in connection with a reference for a preliminary ruling from the German Federal Supreme Court (16 July 2020, joined cases C‑682/18 and C‑683/18) concerning the primary liability of platforms such as Uploaded and YouTube, the Cyberspace Team has taken the opportunity to revise and update its paper “Overview on the jurisdiction on liability of Internet Service Providers (ISPs)”.

The considerations brought forward by Advocate General Saugmandsgaard Øe have again highlighted how relevant and important the discussion surrounding provider liability remains, especially with regard to the much debated Directive on Copyright in the Digital Single Market (Directive 2019/790/EC).

In the view of the Advocate General, pursuant to the current legal situation, the illegal uploading of protected content by platform users does not result in the direct primary liability of the platform operators, as they merely act as intermediaries. Only the uploading users themselves are primarily liable.

This will, however, change with the implementation of the new Directive, which EU Member States must implement by June 2021. According to its requirements, platform operators will be obliged to obtain the permission of rights holders for the online publication of works uploaded by their users (e.g. through licensing agreements). Failure to do so can result in the primary liability of host providers.

A final decision by the CJEU is still pending and can be expected in a few months’ time.

Latest decisions

This updated version of the paper for the first time includes a comprehensive review of the French case law on provider liability, as well as a detailed and updated examination of the newest rulings of the CJEU and national courts (in Germany, the Netherlands, England, Denmark and Sweden).

We would like to take this opportunity to invite any interested MARQUES members to contact the Team with details of other countries to include.

To view the newest version of the "Overview on the jurisdiction on liability of Internet Service Providers (ISP)", please click here (MARQUES login required).

Gabriele Engels is counsel at DLA Piper in Cologne and Co-Vice-Chair of the Cyberspace Team