Liability of Intermediary Service Providers in the Directive on electronic commerce.
| Autor | Pablo Asbo Baistrocchi |
| Cargo | Doctor en Derecho por la Universidad Católica del Uruguay 'Damaso Antonio Larranaga'. |
| Páginas | vLex |
Liability of Intermediary Service Providers in the Directive on electronic commerce
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Introduction
The growing of the e-commerce in the last years has been extremely fast. By the year 2000, it worth 17 billion euro and it is expected to reach 340 billion euro by year 2003.[1] These numbers reflects the importance of this sector in the construction of the internal market. Therefore, it seems inevitable to try to reach the high level of harmonization in all the issues related to this activity, with due regard of the principle of subsidiarity.
In this paper, I will be dealing with a key element in the development of e-commerce initiatives within the European Union: the liability of intermediary service providers (ISPs). Thus, the structure of the paper is as follows. First of all, the main aims of the Directive and some important concepts will be described. Then, I will examine the different types of liability in which ISPs can fall, the areas of liability that can be touched through ISPs activities and the diverse roles that ISPs can play. After that, and turning into the core of the paper, I will discuss the liability of ISPs within the activities covered by the Directive. Finally, some recommendations in order to improve the Directive effectiveness in the light of the Digital Millennium Copyright Act (DMCA) of the United States, because it has been the source of many of the Directive provisions, will be made.
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Aims of the Directive on e-commerce
Generally speaking the Directive on electronic commerce aims[2] are -inter alia- to develop information society services (ISS), ensure legal certainty and consumer confidence through the coordination of national laws and the clarification of legal concepts in this regard to the extent necessary for the proper functioning of the internal market in order to create a legal framework to ensure the free movement of ISS between Member States. This specific free movement of services is part of a general principle of Community law, namely freedom of expression as enshrined in article 10(1) of the European Convention on Human Rights and Fundamental Freedoms, and it is subject only to restrictions expressed in paragraph 2 of that article[3] and in article 46 (1) of the EC Treaty.[4]
More specifically, the Directive aims regarding liability issues[5] are to streamline the functioning of the internal market, enhancing the development of cross-border services and eliminating distortions of competition through the harmonization of national provisions concerning liability of ISP acting as intermediaries. The Directive also intends to be the appropriate foundation for the establishment - through voluntary agreements between all parties concerned and encouraged by Member States- of reliable procedures for removing and disabling access to illegal information.
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Important concepts
Before starting with the analysis of the Directive provisions regarding ISP liability, we consider appropriate to mention the concepts for the different terms we will be dealing in the next pages.
First of all, the Directive defines information society services as any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service. Some of the activities included in the definition are the sell of goods on-line, the transmission of information via a communication network, the hosting of information provided by a recipient of the service, services which are transmitted point to point, such as video-on-demand or the provision of commercial communications by electronic mail, and services which are not remunerated by those who receive them, such as those providing tools allowing for search, access and retrieval of data.[6]
In article 2 we have the following terms defined. Service provider is any natural or legal person providing an information society service. Established service provider is a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider. Recipient of the service is any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible. Consumer is any natural person who is acting for purposes which are outside his or her trade, business or profession. And finally, within the coordinated field falls are the requirements with which the service provider has to comply in respect of -inter alia-: the pursuit of its activity, such as requirements concerning its behaviour and requirements concerning its liability.
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Types of liability
In determining when a ISP can be held liable, the determination of what type of liability is applicable will allow us to know whether they will have to bear a weighty burden over their shoulders through a strict liability system or a lighter one through a with-fault liability system.
With a strict liability system ISP will be held liable regardless of their knowledge and control over the material that it is disseminated through them. As it is called, this system is a stricter one because ISP can be stated responsible (and consequently liable) even though they do not have any possibility to have know and control over the material. This system can be indirectly established through imposing an obligation to monitor all the material that is posted on the Internet. Since to comply with this obligation is a complex technical task and prohibitive from an economic point of view, the majority of small ISP, who do not have all the means to fulfill a requirement like this, would have been facing a threatening amount of potential liability.
In a system based on fault, ISP will be held responsible if they intentionally violate the rights of others. We have to distinguish two levels in this system. The first one is actual knowledge. If the ISP knows that there is some material on the Internet that is violating someoneøs rights, then the ISP will be held liable. In the second level, we have the called constructive knowledge. In this case, the law can determine that if the ISP have some hints or presumes that some material can be infringing someoneøs rights, then it will be held liable.[7] As we will see in the next pages, the liability system imposed by the Directive is closer to the last one described, a with-fault system, with a 'constructive knowledge' requirement.
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Areas of potential liability
One of the particularities of the Internet is the relatively easy way in which individuals can perform several activities, which can therefore raise a number of legal problems.
Now, with almost no technical knowledge and no money[8], anyone in any part of the world can transmit, reproduce, disseminate, etc, a huge amount of material of every type. Texts, pictures, songs, movies, can be posted in a web site using any of the tools that the modern technology offers to everybody. So, the problems arise not for the posting of material itself, which cannot be controlled, but for the content of the material that can be illegal, harmful, obscene, etc.
Therefore, the different legal violations that can happen by using on-line facilities include the following:[9]
* Copyright material: This is one the most affected areas of the law because with the Internet is extremely easy to disseminate copyrighted work. It basically happens when any kind of material (text, picture, music, etc) is posted on a web page, without respecting the copyright holder rights.
* Illegal and harmful content: Includes material that can be labeled as pornographic, racist or terrorist that is distributed throughout the Internet.
* Private and defamatory material: This kind of material includes pictures taken in intimate situations, information concerning the family situation, financial or tax statements, etc. infringing therefore rights of privacy, including those contained in European data protection laws. The same may occur with defamatory material.
* Misrepresentation: This may happen when false or incorrect information provided by someone and disseminated using on-line facilities causes damage to a third party.
* Others: this includes the infringement of other substantive laws such as patents, trademarks, and unfair trade practices.
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On- line intermediaries roles
There are numerous players acting in the Internet world. Sometimes they can be totally separate commercial entities and sometimes they can be part of the same corporation. One of the most known is America On-Line (AOL)[10], which plays several roles, such as access provider, host service provider, information location tool provider and even content provider. The different roles played by the on-line intermediaries may affect the liability regime applicable.
Thus, if we focus our attention on the different roles that the on-line intermediaries play within the cyberspace, the following can be described:[11]
* Network operator: providing the technical facilities for the transmission of information.
* Access provider: providing users access to the Internet.
* Host service provider: providing a server in which users can through the rent of the needed space, set up a web page and put into it all kind of content (such as software, text, graphics, sounds).
* Bulletin board operators, news groups and chat room operators: in the first two services
users can read information sent by other users to post their own messages. Usually, they are devoted to specific topics. The chat room allows direct communication in real time between users, it is a more interactive service that allows also files exchange[12].
* Information location tool providers: they are also called search engines. They...
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