Liability of Providers of
Hyperlinks and Location Tools (PHLTs) in EU Member States
1. E-Commerce Directive,
2000
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"), deals
with the question of the liability of intermediary service providers,
in particular hosting services. The Directive exonerates intermediary service
providers from any liability where they have played a passive role in
transmitting information from a third party. The Directive exempts web-hosting
providers from liability for illegal content transmitted over their servers, if
they are ignorant of the illegal nature of the content and immediately block
access to such content should they become aware thereof.
The E-Commerce
Directive does not specifically deal with the liability of 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.
2. First Report
on the application of the E-Commerce-Directive, 2003
The first report on the
application of the E-Commerce directive adressed 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 intermediaries. 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
http://www.rechtspraak.nl); 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 http://www.foruminternet.org/recommandations/.
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
3. European Member States
with specific legislation regarding providers of hyperlinks and location tools
Spain and Portugal have
extended to PHLT's the protection granted to hosts by the
E-Commerce-Directive
Hungary and Poland have
extended to location tool providers the protection granted to hosts by the
E-Commerce-Directive
Austria has extended to the
providers of location tool services the protection granted to conduits by
Directive 2000/31/EC, and it has also extended to hyperlink providers the
protection granted to “hosts” by the Directive.
The report also discusses court cases in European Union Member States without
specific legislation on the matter. You will find most of the cases also
mentioned on my website (and many more), especially in the "Decisions
from other European countries" section.
Also see:
Joslove, Bradley / Krylov,
Andrèi, Dangerous Liaisons - Liability in the European Union for hypertext
linking and search engine services, CRi 2005, 33-39
LEGAL-IST is an EC funded project aimed to support research in
the IST Priority from a legal point of view by studying the legal implications
of current research initiatives and providing suggestions for relevant
implementation strategy. It also contributes to emerging policies for
strengthening the EU regulatory framework through consensus-building among
policy-makers.
The LEGAL-IST
project legal experts, in conjunction with the associated research projects’
representatives, have conducted legal issue studies on 9 different legal
topics/research areas, one of them on the
Liability of Internet Service Providers.
"GENERAL
PROPOSAL
It would be necessary to review the liability of ISPs from the economic-legal
point of view to reach a conclusion, in view of the current maturity of the
Market and the vertical legislation of the Member States and of the European
Economic Area States, on the need to make extensive or not to PHLTs the
liability system provided for in articles 12 to 14 of Directive 2000/31/EC.
Should it be concluded that such legislation is necessary, it should be
implemented in a manner such that:
The
special role that PHLTs play in the Information Society is taken into
account, in order to promote the provision of their services subject to a
reasonable liability system.
The
effects that NTD procedures could have on freedom of expression and third
party intellectual property rights unless mechanisms such as counter-notice
and put-back procedures are considered.
...
About
adwords:
Given the present lack of specification of the legal nature of the adwords
service and the consequent legal uncertainty and distortion of the Internal
market this may cause, it would be advisable to analyse this issue in the light
of EC legislation and the laws of the Member States on Advertising, Industrial
Property and Competition to decide whether or not it would be pertinent to
harmonise legislation on the matter throughout the entire European Union..."
b. Own
view
The EU still does not provide an
adequate legal framework for the regulation of search engines and their
functions. In my point of view such legislation is necessary to end the legal
uncertainty.
The views expressed in this
section are my own and do not reflect the views of the Legal-IST Project.
I would welcome comments of my readers of any kind (Do you agree with my
statements? Do you also believe that additional EU legislation is required in
this area? What would be a reasonable liability system for PHLTs in your point
of view? etc.). I will post them on my website with the next update unless you
don't want me to. Also feel free to
visit the Legal-IST Website and participate
in the discussion forum on several other topics not covered by my website, e.g.
Software Agents or RFID.
The EU should grant
search engines broad immunity from contributory liability for infringing
activities by third parties, as long as the person, whose rights were violated
has reasonable chances to go after the content or host provider. Therefore a
two-fold approach should be discussed:
If the website in question is hosted in an EU member state
or the content provider / domain owner resides in an EU member state, search
engines should be immune from liability.
If the website in question is not hosted in an EU member state and the
content provider / domain owner does not reside in an EU member state, the
protection granted to hosts by the E-Commerce Directive should be extended
and a Notice and Takedown Procedure should be introduced.
WHY???
1. The importance of search engines and the need for a
reasonable liability system has been recognized in other countries, e.g. the
USA. Even without the DMCA Safe Harbor Provisions, search Engines in the USA are
pretty much immune from contributory liability for linking to unlawful content.
512 d
DMCA Information Location Tools.— A service
provider shall not be liable for monetary relief, or, except as provided in
subsection (j), for injunctive or other equitable relief, for infringement
of copyright by reason of the provider referring or linking users to an
online location containing infringing material or infringing activity, by
using information location tools, including a directory, index, reference,
pointer, or hypertext link, if the service provider—
(1)(A)does
not have actual knowledge that the material or activity is infringing;
(B)in the
absence of such actual knowledge, is not aware of facts or
circumstances from which infringing activity is apparent; or
(C)upon
obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material; (2)does
not receive a financial benefit directly attributable to the
infringing activity, in a case in which the service provider has the
right and ability to control such activity; and (3)upon
notification of claimed infringement as described in subsection
(c)(3), responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing or to be the subject of
infringing activity, except that, for purposes of this paragraph,
the information described in subsection (c)(3)(A)(iii) shall be
identification of the reference or link, to material or activity
claimed to be infringing, that is to be removed or access to which
is to be disabled, and information reasonably sufficient to permit
the service provider to locate that reference or link.
According to the court in the Perfect 10 v. Google case a
search engine does not commit contributory or vicarious infringement by
indexing and linking to infringing websites. As long as search engines
refrain from actively encouraging users to visit infringing third-party
websites, they are immune from all secondary infringement claims in the USA,
even if they have knowledge of the direct infringement. As long as the
extent of vicarious or contributory liability of search engines was very
unclear, search engines have embraced the opportunity to take advantage of
the safe harbour provisions set forth in section 512 d of the DMCA, in an
attempt to avoid the uncertainty of liability outside them. But they no
longer depend on the safe harbour provisions, if the Perfect 10 decision
holds on appeal (see Update 41:
Google, Perfect 10 appeal thumbnails case).Google and
other search engines could simply stop removing sites from their search
results, even after receiving a take down notice. I personally doubt that
search engines will stop complying with the notices, because otherwise the
demand for stricter regulation of search engine activity might arise.
Section 230 of the Communications Decency Act, which does
not apply to intellectual property law, gives a blanket immunity to search
engines for both providing and removing access to material. According to the
Act "No provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another
information content provider". Effectively, this section immunizes search
engines from torts committed by the operators of the linked-to web sites.
US law
acknowledges the importance of search engines
for the functioning of the information-society. The EU should also take into the
account the special role that search engines play on the internet and in order
to promote their services subject them to a reasonable liability system. In my
point of view that means: search engine liability only in cases where it is
absolutely necessary to protect the rights of people, especially when they have
no chance of getting the infringing content removed with reasonable effort.
2. DMCA
takedown notices are susceptible to abuse and there is no efficient protection
against the overzealous removal of content by search engines
The DMCA
takedown notices are susceptible to abuse. According to a report by
researchers who analyzed hundreds of takedown notices nearly one third of
the takedown notices submitted to online service providers (under the
Digital Millennium Copyright Act) are for claims that may not justify
takedown. The study found an unfortunately high incidence of questionable
uses. Examples cited by the report include use of the process to protect
uncopyrightable material, stifle criticism and punish competitors.
(See:
Study examines DMCA Cease-and-Desist Letters)
Notice and
take down provisions should be introduced, but should also - with regard to
search engines - be limited to the above mentioned cases. This would reduce
the risk of abuse. A company e.g. would no longer be able to use the
procedure to harm its competitors, as long as these reside within the EU.
The risk of
abuse of the procedure is not so high with regard to host providers. Many of
them have a contract with the alleged infringer and will have financial
interests that will prevent them from overzealously removing content. In
many circumstances the host provider will consider the interests of the
alleged infringer and make a fair determination based on the facts
presented. But there is no relationship between the search engine and the
alleged infringer. How can protection against the overzealous removal of
content by search engines be ensured in this case? Search engines have
nothing to win by not complying with a notice. The operators of the
linked-to-websites are not their customers. Search engines have no financial
interest in keeping a web site in their index. At least a detailed set of
counter-notification procedures should be introduced.
3. Equal or better protection by going
after the content or host provider
In order to
attack allegedly infringing web sites effectively, notifications have to be
send to all major search engines. But even then the material in question is
still available online. A notification sent to the service provider
responsible for hosting such web sites would provide equal or better
protection.
Search
Engines and Adwords
Finally a very short look at "Search Engines and AdWords". In my
opinion there should be no legal difference between hosting a web site and
"hosting an advertisement". The EU should clarify that the protection
granted to hosts also applies to search engine ad programs.
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