Links & Law - Information about legal aspects of search engines, linking and framing

Hyperlink & Search Engine Law News  Decisions & Court Documents Worldwide Legal Resources (Hyperlink & Search Engine Law Articles) Linking Law Cases Search Engine Law Publications by Dr. Stephan Ott Technical    Background

Hyperlinks, Search Engines - First Report on the application of the E-Commerce-Directive

The E-Commerce Directive does not specifically deal with the liability for providers of hyperlinks.  But according to Article 21 of the Directive, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive before 17 July 2003, and thereafter every two years. In examining the need for an adaptation of this Directive, the report shall in particular analyse the need for proposals concerning the liability of providers of hyperlinks and location tool services, "notice and take down" procedures and the attribution of liability following the taking down of content. The first report on the application of the E-Commerce directive adresses the issue of liability for hyperlinks. The report states: 

In addition to the matters dealt with by Articles 12-14, some Member States 68 decided to provide for limitations on the liability of providers of hyperlinks and search engines.69 This was motivated by the wish to create incentives for investment and innovation and enhance the development of e-commerce by providing additional legal clarity for service providers. Whilst it was not considered necessary to cover hyperlinks and search engines in the Directive, the Commission has encouraged Member States to further develop legal security for internet in-termediaries. It is encouraging that recent case-law in the Member States recognizes the importance of linking and search engines to the functioning of the internet. In general, this case-law appears to be in line with the Internal Market objective to ensure the provision of basic intermediary services, which promotes the development of the internet and e-commerce. Consequently, this case-law does not appear to give rise to any Internal Market concerns 70 . 

In a few cases 71 national courts have already interpreted the Directive. However, in these cases, the national implementing measures of the Directive had not yet been adopted in the States concerned.

There is still very little practical experience on the application of Articles 12-14, but the feedback received so far from the Member States and interested parties has, in general, been positive. The approach taken in the Directive appears to have wide reaching support among stakeholders. In any case the Commission will, in accordance with Article 21, continue to monitor and rigorously analyse any new developments, including national legislation, case-law and administrative practices related to intermediary liability and will examine any future need to adapt the present framework in the light of these developments, for instance the need of additional limitations on liability for other activities such as the provision of hyperlinks and search engines.72


68 Spain, Austria and EEA-State Liechtenstein and Portugal in its draft law. 

69 Spain and Portugal have opted for the model of Article 14 both for search engines and hyperlinks, whereas Austria and Liechtenstein have opted for the model of Article 12 for search engines and of Article 14 for hyperlinks. 

70 For example in France TGI Paris, référé, 12 mai 2003, Lorie c/M. G.S. et SA Wanadoo Portails, in Germany in the case Verlagsgruppe Handeslblatt v. Paperboy, aus dem Bundesgerichtshof (BGH), Urteil vom 17. Juli 2003 – I ZR 259/00. 

71 Cases Deutsche Bahn v. XS4ALL, judgement by Gerechtshof te Amsterdam (Court of Appeals), 762/02 SKG, of 7.11.2002, and Deutsche Bahn v. Indymedia, judgement by Rechtbank Amsterdam (District Court), KG 02/1073, of 20.6.2002, in the Netherlands (judgements available at; and Case Public Prosecutor v. Tele2 in the EEA-country Norway, judgement by Borgarting Lagmannsrett (Court of Appeals), 02-02539 M/01, of 27.6.2003. Tele2 was acquitted when the public prosecutor dropped charges against it.

72 The approach of the Member States who opted to legislate on the hyperlinks and search engines does not seem to give rise to a risk of fragmentation of the Internal Market. The Commission is, however, actively following work in Member States relating to liability issues such as the fundamental work carried out by "Le Forum des droits sur l'Internet" in France, which has published recommendations on hyperlinks called "Hyperliens: Statut Juridique", published 3.3.2003, and "Quelle responsabilité pour les créateurs d'hyperliens vers des contenus illicites, published 23.10.2003, both available at


The text in German is available here!


Additional Comments: 

Footnote 70 mentiones a verdict in the dispute between Handelsblatt and Paperboy. This case was not about liability for linking to illegal material. The case was about legality of deep linking in Germany.

In the USA, South Africa, Austria and Spain the liability for linking to illegal material is regulated by law.

  • E-Commerce Directive  = Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')

  • First Report on the application of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce); Brussels, 21.11.2003; COM(2003) 702 final

  • Erster Bericht über die Anwendung der Richtlinie 2000/31/EG des Europäischen Parlaments und des Rates vom 8. Juni 2000 über bestimmte rechtliche Aspekte der Dienste der Informationsgesellschaft, insbesondere des elektronischen Geschäftsverkehrs, im Binnenmarkt (Richtlinie über den elektronischen Geschäftsverkehr)



The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

You are currently in the archive with older news. A complete list of the updates can be found here!


Masthead/Curriculum Vitae
Copyright © 2002-2008 Dr. Stephan Ott 

All Rights Reserved.