c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7

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Intermediaries' liability for online copyright

infringement in the EU: Evolutions and confusions

Tatiana-Eleni Synodinou*
Law Department, University of Cyprus, Cyprus

abstract

Keywords: Nearly fifteen years ago and since the adoption of the E-commerce Directive 2000/31/EC the
Intermediary liability issue of the intermediaries' liability in Europe was thought to have been settled by the
Telekabel creation of a safe harbor regime, inspired by the American model. This article focuses on
Delfi v. Estonia two recent jurisprudential interpretations on the question of intermediaries' liability: the
E-Commerce Directive (2000/31/EC) Court of Justice of the European Union (CJEU) Telekabel judgment and the Judgment of the
European Court of Human Rights (ECtHR) in the case Delfi v Estonia. The author analyses
these evolutions and submits that intermediaries' asylum is in fact much less absolute
than it looks. The article also demonstrates that intermediaries' safe harbor will have to
deal with the recognition of human rights that could open new horizons to the develop-
ment of the regulation of the intermediaries' liability.
2015 Tatiana-Eleni Synodinou. Published by Elsevier Ltd. All rights reserved.

evolutions, from the Court of Justice of the European Union

1. Introduction
14 years have passed since the establishment of the Internet
intermediaries' safe harbor regime in the E-Commerce Direc-
tive 2000/31/EC. Since 14 years is more or less an age, which
can be seen as antediluvian in terms of Internet, it could have
been reasonably assumed that the question was more or less
settled and the legal answers refined in most instances.
Nonetheless, the question of E-Commerce's intermediaries'
asylum still remains enigmatic for national courts, both in
respect of the question of liability and of the injunctions
against intermediaries as third parties. Recent jurisprudential
and the European Court of Human Rights, have added some
more haze to the landscape of intermediaries' asylum and li-
ability. Heterogeneity and diversification in respect of the
status of liability of Internet intermediaries among various
Member States is an inherent ingredient of the E-Commerce
Directive's regulation: the latter harmonized only the question
of exoneration from liability of three main archetypes of in-
termediaries leaving to national member states the thorny
question of liability.1 Indeed, as Christina Angelopoulos notes
the veneer of approximation that the safe harbors supply
masks the persisting fragmentation of substantive liability
law along European borders.2

* Law Department, University of Cyprus, University House Anastasios G. Leventis 1 Panepistimiou Avenue, Aglantzia, Nicosia, P.O.
Box 20537, 1678 Nicosia, Cyprus.
E-mail address: synodint@ucy.ac.cy.
1
M. Walter, in: M. Walter, S. von Lewinski, European Copyright Law, A Commentary, Oxford University Press, 2010, p. 1088, no 11.8.
13Pablo Baistrocchi, Liability of Intermediary Service Providers in the. EU Directive on Electronic Commerce, 19 Santa Clara High Tech.
L.J. 111 (2002). Available at: http://digitalcommons.law.scu.edu/chtlj/vol19/iss1/3.
2
Chr. Angelopoulos, Beyond the Safe Harbors: Harmonizing Substantive Intermediary Liability for Copyright Infringement in Europe,
Intellectual Property Quarterly, 2013e3, p. 254.
http://dx.doi.org/10.1016/j.clsr.2014.11.010
0267-3649/ 2015 Tatiana-Eleni Synodinou. Published by Elsevier Ltd. All rights reserved.
58 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
This article focuses on two recent jurisprudential in-
terpretations on the question of intermediaries' liability: the
CJEU's Telekabel judgment3 and the Judgment of ECtHR in the
case Delfi v Estonia.4 In both cases the dominant human rights
rhetoric, while expressed in completely different terms in
each case, led somewhat surprisingly to a similar outcome: to
incommode and make much more delicate the position of
intermediaries by detailing even more the circumstances
surrounding their involvement and of their liability for
Internet copyright infringements.
2. The growing influence of human rights on
intellectual property enforcement
Balancing of interests has engaged academic copyright debate
as an internal challenge for copyright law. The main idea is
that the contours of the protectable subject matter, the
threshold of originality, the distinction between ideas and
expression and mainly copyright exceptions/limitations shall
be interpreted under a human rights vision in order to
reconcile copyright with the society and technological trends.
The Lernaean Hydra of piracy has unavoidably shifted the
human rights copyright debate in the field of intellectual prop-
erty rights (IPR) enforcement. The rise of human rights rhetoric in
IP enforcement is a constant trend in CJEU's case law dealing with
the role of intermediaries in cases of copyright infringement.
The IP enforcement strategies of right holders have passed
various stages in response to emerging trends of copyright
infringement. After suing the distributors of peer to peer
software5 and then the individual users at significant social
cost,6 the focus was given to Internet intermediaries due to
their organically indispensable role in making available of
copyright infringing content.
Depending on the target of the enforcement strategy
against Internet copyright infringement, different funda-
mental rights are at stake and this has been naturally reflected
in the CJEU's case law in the field of intellectual property
rights. In claims of direct copyright infringements which were
brought against individual users, the focus has been given on
the reconciliation of the right to respect for private life and
personal data protection with intellectual property law, since
the identification of direct infringers presupposed the disclo-
sure of their personal data to the claimants by Internet Service
Providers (ISPs). In claims against intermediaries, either on
the legal grounds of secondary infringement or in the form of
injunctions against intermediaries as third parties, copyright
3
CJEU, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH,
Wega Filmproduktionsgesellschaft mbH, Case C314-/12, Judgment of
27 March 2014.
4
Case of Delfi AS v Estonia, (Application no. 64569/09), Judgment
of 10 October 2013. The case was referred to the Grand Chamber
in 17/02/2014.
5 15
See in this respect: Metro-Goldwyn-Mayer Studios Inc v Grokster
Ltd, 545 U.S. 913 (2005) Universal Music Australia Pty Ltd. v Sharman
License Holdings Ltd (2005) 220 A.L.R. 1.
6
These actions have not won general approval from the public
at large. See: Kristina Groennings, Costs and Benefits of the
Recording Industry's Litigation Against Individuals, 20 Berkeley
Tech. L.J. 571, 589 (2005).
law clashes mainly with the freedom of ISPs to conduct
business, the right of the public to receive and impart infor-
mation and personal data protection.7
In the Promusicae,8 the Tele29 and the Bonnier Audio10 cases the
Court set as a fundamental principle of IP enforcement the
proper calibration of different fundamental rights. According to
the Court, each Member State has to reconcile the requirements
of the protection of different fundamental rights, namely the
right to respect for private life on the one hand and the right to
protection of property (including intellectual property rights)
and to an effective remedy on the other. Furthermore, it stated
that the authorities and courts of the Member States shall
ensure that they do not rely on an interpretation of their na-
tional laws in a way that would be in conflict with fundamental
rights or with the other general principles of Community law,
such as the principle of proportionality.
In the Scarlet11 and the Netlog12 cases, the Court, following
the Promusicae case, stated that a fair balance must be struck
between the protection of copyright and the fundamental
rights of persons affected by such measures, since nothing in
the Charter of Fundamental Rights of the European Union
suggests that copyright is inviolable.13 Installing a system for
filtering all electronic communications passing through its
service would infringe the fundamental rights both of the ISP's
and of their customers, namely the ISP's freedom to conduct
business,14 their customers' right to protection of their per-
sonal data15 and their customers' freedom to receive or impart
information, since a filtering system would identify users'
Internet Protocol (IP) addresses and could lead to the blocking
of lawful communications of information.16
Nonetheless, apart from setting as a fundamental principle
of IP enforcement the balancing of fundamental rights, the
Court's rulings are rather vague,17 sparing and elliptic, since
7
See: CJEU, Scarlet Extended SA v Societe Belge des Auteurs, Compo-
siteurs et Editeurs SCRL (SABAM), Case C-70/10, Judgment of 24
November 2011, par. 50: Moreover, the effects of that injunction
would not be limited to the ISP concerned, as the contested filtering
system may also infringe the fundamental rights of that ISP's cus-
tomers, namely their right to protection of their personal data and
their freedom to receive or impart information, which are rights
safeguarded by Articles 8 and 11 of the Charter respectively.
8
CJEU, Productores de Musica de Espan ~ a (Promusicae) v Telef
onica
de Espan ~ a SAU, Case C-275/06, Judgment of 29 January 2008.
9
CJEU, LSG-Gesellschaft zur Wahrnehmung von Leistungs-
schutzrechten GmbH v Tele 2 Telecommunication GmbH (Tele2),
Case C-557/07, Judgment of 19 February 2009.
10
CJEU, Bonnier Audio AB v Perfect Communication Sweden AB
(ePhone), Case C-461/10, Judgment of 19 April 2012.
11
CJEU, Scarlet Extended SA v Societe Belge des Auteurs, Composi-
teurs et Editeurs SCRL (SABAM), op.cit.
12
CJUE, Belgische Vereniging van Auteurs, Componisten en Uitgevers
CVBA (SABAM) v Netlog NV, Case C-360/10, Judgment of 16
February 2012.
13
See: CJEU, Scarlet Extended, op.cit., at par. 43.
14
Article 16 of the Charter.
Article 8 of the Charter.
16
Article 11 of the Charter.
17
J. Griffiths, Constitutionalising or harmonising? The Court of
Justice, the right to property and European copyright law, Euro-
pean Law Review 2013, 38(1), p. 74 (The author notes that In the
recent copyright cases, the application of the fair balance
concept is vague).
 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
they do not provide further clarifications on how the delicate
task of balancing will occur in a national level. For, example,
do ISPs need to apply different tests in different situations? In
respect of the disclosure of personal data, does it make a dif-
ference if it involves infringing copyright or identity theft on
social media?18
Furthermore, the Court, which prefers to use its own
normative corpus (the Charter of Fundamental Rights of the
European Union instead of the European Convention of
Human Rights),19 focuses mainly on certain freedoms without
discussing further the implications of IP enforcement for
other fundamental rights, such as the confidentiality of
communications20.
It could be argued that the restricted approach adopted
by the CJEU is reasonable, since the content of the legal
frameworks regulating the behavior of ISPs should depend
upon the local trade-offs among conflicting fundamental
rights and liberties.21 Indeed, one of the main criticisms in
respect of the development of a protective system for
human rights by the CJEU has been the inherently contro-
versial nature of fundamental rights, which at national level
is expressed in the form of conflicting values and rights.
National legal orders balance those rights in a manner that
reflects national values, so any alternative approach of the
CJEU is problematic.22 On the other hand, in many circum-
stances national laws do not provide further clarification as
to how the proper balancing of interests will be achieved in
specific cases. For, example, as Pekka Savola highlights in
respect of the remedy of injunctions against intermediaries,
which is provided by article 8 par. 3 of the Information So-
ciety Directive,23 many Member States implemented this
provision in a very minimal fashion, almost verbatim, or
without substantial additional details or modalities and and
even preparatory materials maybe lacking and, as a consequence,
in many cases national constitutional systems provide little input
to the evaluation.24
18
A. Tsoutsanis, Privacy and piracy in cyberspace: justice for all,
Journalof Intellectual Property Law and Practice Advance Access
published October 24, 2013.
19
C. Castets-Renard, Protection du droit d'auteur confronte e
aux droits fondamentaux: point trop n'en faut !, Revue Lamy Droit
de l'Immate riel 2012, n
79, p.9.
20
S. Kulk, F. Zuiderveen Borgesius, Filtering for copyright
enforcement in Europe after the Sabam cases, E.I.P.R. 2012, 34(11),
791e795.
21
Sophie Stalla-Bourdillon, The flip side of ISP's liability re-
gimes: the ambiguous protection of fundamental rights and lib-
erties in private digital spaces (2010), Available at SSRN: http://
ssrn.com/abstract2321649 or http://dx.doi.org/10.2139/ssrn.
2321649.
22
C. Kombos, The ECJ and Judicial Activism: Myth or reality?
Sakkoulas Publications, Athens-Thessaloniki, 2010, p. 281.
23
Member States shall ensure that rightholders are in a posi-
tion to apply for an injunction against intermediaries whose
services are used by a third party to infringe a copyright or related
right.
24
P. Savvola, Proportionality in Fundamental Rights Conflicts in
National Measures Implementing EU Law, (April 30, 2014). Avail-
able at SSRN: http://ssrn.com/abstract2432260 or http://dx.doi.
org/10.2139/ssrn.2432260.
59
3. Application to the ISPs: the injunctions
and their effect
Seeking a remedy against Internet Service providers appears
to be a growing trend in Europe. Copyright holders, have
employed a new strategy: seeking injunctions against local
Internet access providers and Internet backbone operators,
ordering them to block access to websites providing infringing
download links.25
This strategy, that is based on the legal grounds of article 8
par. 3 of the Information society Directive, on article 12 (3) of
the E-Commerce Directive and on and article 11 par. 3 of the
Enforcement Directive, lies in the logic that is enshrined by
Recital 59 of the Information Society Directive, that in many
cases such intermediaries are best placed to bring infringing
activities to an end.
The possibility to order ISPs to prevent copyright in-
fringements by the ordering of injunctions has also been
confirmed by the CJEU. In the 2009's CJEU's Tele2 ruling, the
Court clarified that access providers which merely provide
users with internet access, without offering other services
such as email, standard File Transfer Protocol (FTP) or file-
sharing services or exercising any control, whether de iure
or de facto, over the services which users make use of, must be
regarded as intermediaries' within the meaning of Article 8(3)
of the [Information Society] Directive.26 In L'Oreal v Ebay27 the
Court ended the interpretative controversy whether in-
junctions against the intermediaries presupposed their direct
or secondary liability in tort law, when admitting that Member
states shall ensure that their courts have jurisdiction to order
online service providers to take measures to prevent future
infringements of intellectual property regardless of their lia-
bility in tort law. The Court has also set the minimum
threshold in respect of this obligation. Even though the
implementation of the enforcement policy via injunctions is a
question of national law, those injunctions must be effective,
proportionate, and dissuasive and must not create barriers to
legitimate trade.28
In the TeleKabel case29 the question of web site blocking
injunctions against ISPs was put in front of the CJEU.
3.1. The Telekabel judgment: presentation of facts and
of the dictum
The facts of the case are typical of web blocking injunction
cases. Having established that a website was offering, without
their agreement, either a download or streaming of some of
25
Lukas Feiler, Website Blocking Injunctions under EU and U.S.
Copyright LawdSlow Death of the Global Internet or Emergence
of the Rule of National Copyright Law? TTLF Working Paper No.
13, http://www.law.stanford.edu/program/centers/ttlf/papers/
feiler_wp13.pdf.
26
CJEU, LSG v Tele2, op.cit., dictum.
27
CJEU, case C-324/09 L'Oreal and others v EBay, Judgment of 12
July 2011.
28
M. Husovec, Injunctions against Innocent Third Parties: The
Case of Website Blocking, JIPITEC, 2, p. 117.
29
CJEU, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH,
Wega Filmproduktionsgesellschaft mbH, Case C314-/12, Judg-
ment of 27 March 2014.
60 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
the films which they had produced, two film production
companies, Constantin Film and Wega, sought to obtain an
order enjoining UPC Telekabel, an internet service provider, to
block the access of its customers to the website at issue,
inasmuch as that site made available to the public, without
their consent, cinematographic works over which they
asserted a right related to copyright.
By order of 13 May 2011, the Handelsgericht Wien (Com-
mercial Court, Vienna) (Austria) prohibited UPC Telekabel
from providing its customers with access to the website at
issue; that prohibition was to be carried out in particular by
blocking that site's domain name and current IP (Internet
Protocol) address and any other IP address of that site of
which UPC Telekabel might be aware. By order of 27 October
2011, the Oberlandesgericht Wien (Higher Regional Court,
Vienna) (Austria), as an appeal court, partially reversed the
order of the court of first instance in so far as it had wrongly
specified the means available to UPC Telekabel to block the
website at issue and thus execute the injunction. More pre-
cisely, the Court held that UPC Telekabel could only be
required, in the form of an obligation to achieve a particular
result, to forbid its customers access to the website at issue.
Beyond that it had to remain free to decide the means to be
used.
UPC Telekabel appealed. In support of its appeal, UPC
Telekabel submitted inter alia that its services could not be
considered to be used to infringe a copyright or related rights
within the meaning of Article 8(3) of Directive 2001/29 because
it did not have any business relationship with the operators of
the website at issue and it was not established that its own
customers acted unlawfully. In any event, UPC Telekabel
claimed that the various blocking measures which might be
introduced could be technically circumvented and that some
of them were excessively costly.
The Court, in line with its ruling in the Tele2 case,
confirmed that ISPs are intermediaries in the sense of article 8
par. 3 of the Infosoc Directive. Consequently they can be or-
dered to block access to copyright infringing websites without
it being necessary that they have a contractual relationship to
the infringing website.30 In addition they do not need to show
that some of their customers actually accessed the protected
subject-matter made available to the public,31 on the website
at issue, since the existence of an act of making a work
30
See par. 35 of the judgment: Neither the wording of Article
8(3) nor any other provision of Directive 2001/29 indicates that a
specific relationship between the person infringing copyright or a
related right and the intermediary is required. Furthermore, that
requirement cannot be inferred from the objectives pursued by
that directive, given that to admit such a requirement would
reduce the legal protection afforded to the rightholders at issue,
whereas the objective of that directive, as is apparent inter alia
from Recital 9 in its preamble, is precisely to guarantee them a
high level of protection.
31
See par. 36 of the judgment: Nor is the conclusion reached by
the Court in paragraph 30 of this judgment invalidated by the
assertion that, in order to obtain the issue of an injunction
against an internet service provider, the holders of a copyright or
of a related right must show that some of the customers of that
provider actually access, on the website at issue, the protected
subject-matter made available to the public without the agree-
ment of the rightholders.
available to the public presupposes only that the work was
made available to the public. It is not decisive that persons
who make up that public have actually had access to that
work or not.32
The most awaited question, viz the compatibility with EU
law of a general blocking order that does not specify its means,
has led to somewhat unanticipated33 and rather intriguing
answers. In order to give its answer the Court analyzed first
the effect of the blocking injunction for the freedom to
conduct a business of the ISP and then its effects for the ISP's
customers and Internet users.
In respect of the balancing of copyright protection with the
freedom to conduct a business, the Court states that an
injunction that leaves to the ISP to determine its means does
not seem to infringe the very substance of the freedom of an
internet service provider. This is because such an injunction
enables the ISP to choose to put in place measures which are
best adapted to the resources and abilities available to them
and which are compatible with the other obligations and
challenges which they will encounter in the exercise of its
activity.
Moreover, such an injunction allows its addressee to avoid
liability by proving that he has taken all reasonable mea-
sures.34 Furthermore, when choosing these measures the ISP
has to take into consideration the fundamental rights of
Internet users and more precisely it must ensure compliance
with the fundamental right of internet users to freedom of
information.
The formula that has been enshrined by the Court is
accompanied by procedural safeguards aiming to comfort
both the position of the ISP and of Internet users. As regards
ISPs, in accordance with the principle of legal certainty, it
must be possible for the addressee of an injunction to main-
tain before the court that the measures taken were indeed
those which could be expected in order to prevent the pro-
scribed result,35 once the implementing measures taken are
known and before any decision imposing a penalty is adopted.
In respect of Internet users, the national procedural rules
must provide a possibility for internet users to assert their
rights before the court once the implementing measures
taken by the internet service provider are known.36
In respect of copyright, the Court recognizes that it is
possible that the enforcement of an injunction, such as that in
the main proceedings, will not lead to a complete cessation of
the infringements of the intellectual property rights of the
persons concerned. Nonetheless, the measures which are
taken by the addressee of an injunction must be sufficiently
effective to ensure genuine protection of the fundamental
right at issue, that is to say they must have the effect of pre-
venting unauthorized access to the protected subject-matter
or, at least, of making it difficult to achieve and of seriously
discouraging internet users who are using the services of the
32
Par. 40 of the judgment.
33
Pekka Savola, Website blocking in copyright injunctions: a
further perspective, Friday, 28 March 2014, at: http://the1709blog.
blogspot.gr/2014/03/website-blocking-in-copyright.html.
34
Par. 53 of the judgment.
35
Par. 54 of the judgment.
36
Par. 57 of the judgment.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
addressee of that injunction from accessing the subject-
matter made available to them.
3.2. Telekabel's aftermath: a lot of uncertainty
Apart from the main finding that general website blocking
injunctions are also under certain conditions compatible with
EU law and fundamental rights,37 the Telekabel decision's most
important interpretative contribution seems to lie in two key
pieces of the website blocking injunctions puzzle: a) the
effectiveness of the means of implementing the injunction
and b) the rights of Internet users.
3.2.1. The standard of the effectiveness of the means of the
injunction
The Court builds on the concept of effectiveness of the
injunction that is established in article 3 par. 2 of the
Enforcement Directive38 and confirmed in the CJEU's L0 Oreal v
Ebay case,39 as to what in principle is acceptable under the
human rights standard of effectiveness.
It is noteworthy that the Court first recognizes that it is
possible that a means of putting a complete end to the in-
fringements of the intellectual property rights does not exist
37
According to the logic of the Scarlet and Netlog cases, blocking
injunctions that are specific (in the sense of targeted at a clearly
indicated website) are permissible, as long as they do not unrea-
sonably infringe users' rights. See: Chr. Angelopoulos, CJEU in UPC
Telekabel Wien: A totally legal court orderto do the impossible, at:
http://kluwercopyrightblog.com/2014/04/03/upc-telekabel-wien/.
The acceptability of general blocking injunctions is compatible with
the logic that the intermediary is not just the best placed but also the
best placed to decide the appropriate measures on the basis of its
business model and the state of art. Nonetheless, these measures
must be proportionate and effective and must respect the funda-
mental rights of Internet users. It is noteworthy that in France, in
the ruling in the case Allostreaming it was already held that leaving
to the intermediaries the possibility to choose the appropriate
blocking measures is well founded and compatible with French law.
More precisely, the claimants were seeking by the Court an order
obliging the ISPs to implement all appropriate measures to prevent
the access from French territory to certain streaming websites.
According to the Court, the claim, which allows each ISP to deter-
mine the nature of the measures to be implemented, given the legal
and technical structure of its business, the impact of measures
taken and the evolution of the dispute and it favors a measure
accepted by all ISPs is well founded. See: Tribunal de grande
instance de Paris, Ordonnance de re fere, 28 novembre 2013, APC et
autres/Auchan Telecom et autres, accessible at: http://www.legalis.
net/spip.php?pagejurisprudence-decision&id_article3935.
38
Those measures, procedures and remedies shall also be
effective, proportionate and dissuasive and shall be applied in
such a manner as to avoid the creation of barriers to legitimate
trade and to provide for safeguards against their abuse.
39
Par. 136 of the judgment: Those rules of national law must,
however, be designed in such a way that the objective pursued by
the directive may be achieved (see, inter alia, in relation to the
principle of effectiveness, Joined Cases C430-/93 and C431-/93
Van Schijndel- and van Veen- [1995] ECR I-4705, paragraph 17;
Joined Cases C222-/05 to C225-/05 van der Weerd- and Others
[2007] ECR I-4233, paragraph 28, and Joined Cases C145-/08 and
C149-/08 Club Hotel Loutraki- and Others [2010] ECR I-0000,
paragraph 74). In that regard, it should be borne in mind that,
under Article 3(2) of Directive 2004-/48, the measures concerned
must be effective and dissuasive.
61
or is not in practice achievable, as a result of which some
measures taken might be capable of being circumvented in
one way or another.
The Court, further, expresses in more concrete terms the
standard of effectiveness that could lead to the exoneration of
ISPs from any liability for breach of the injunction.
According to the Court, the measures which are taken by
the addressee of an injunction must be sufficiently effective to
ensure genuine protection of the fundamental right at issue:
that is to say that they must have the effect of preventing
unauthorized access to the protected subject-matter or, at
least, of make it difficult to achieve and of seriously discour-
aging internet users who are using the services of the
addressee of that injunction from accessing the subject-
matter made available to them.
So, the minimum effect of the measures shall be to hamper
and to seriously discourage Internet users from accessing the
subject-matter made available to them. The effectiveness is
then necessarily relative40 and subject to practical con-
straints, as is the protection of copyright when it comes to its
balancing with other fundamental rights.
The Court sets, consequently, a principle that is technolog-
ically neutral and seems to take into consideration the unde-
niable fact that complete effectiveness is a utopia. Even this
finding is addressed directly to private parties (the ISPs) and has
arisen in a specific case about general injunctions that seem to
be a particularity of Austrian legal system41; the underlying
principle that stems from the Enforcement Directive shall also
apply to specific injunctions designated by national courts.
3.2.2. The guarantee of Internet user's rights
The second essential principle of the ruling is the necessity to
guarantee Internet Users' rights. This is not something new,
since it is present in all CJEU's case law dealing with IP copy-
right enforcement in the Internet, when the balancing of in-
tellectual property with fundamental rights is at stake. What
makes a difference, however, is the procedural safeguard of
these rights since, as the Court states, national procedural
rules must provide a possibility for internet users to assert
their rights before the court once the implementing measures
are known. As Pekka Savola highlights, this seems to provide
locus standi for users, which is unheard of in many jurisdic-
tions. A user could therefore address the court with a
complaint that the specific blocking method chosen affects
his/her fundamental rights.42 The question then is, does this
locus standi principle apply exceptionally only in the case of
general injunctions, such as those provided by the Austrian
law, or should it be extended to all blocking injunctions, even
the specific ones that are issued by courts? Shall the Internet
user's locus standi principle apply even in cases where the ISP
has sought from the Court an evaluation and a validation of
40
Chr. Caron, Le blocage des sites contrefaisants une nouvelle
fois devant la Cour de Justice de lUnion europe enne,
Communication-Commerce Electronique, mai 2014, p. 29.
41
Angelopoulos.
42
Website blocking in copyright injunctions: a further
perspective, 28 March 2014 http://the1709blog.blogspot.gr/2014/
03/website-blocking-in-copyright.html.
62 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
the measures that were chosen in order to implement the
injunction?
3.2.3. The effectiveness and the Internet users rights
principles revisited
In order to find out whether the Court's effectiveness test fits
within the current state of art of web blocking injunction
techniques, it is necessary to briefly refer to the three main
methods by which injunctions could implemented: Domain
Name Server (DNS) blocking, IP address blocking and the
Uniform Resource Locator (URL) blocking methods.43
DNS blocking is a common method of denying access to
certain websites. Each ISP has its own DNS server that func-
tions as phone book for its subscribers. So whenever an
Internet user types a specific website address, the browser will
first ask the ISP's phone book what the IP address for that
website is. Once it has figured out the IP address it will then
load the website. With DNS blocking, the ISP is simply
removing the record for the blocked websites from their
phone book so that when you try to load one of the blocked
websites, all you get is a blank screen in your browser because
it does not know what the IP address is.44 From a user's point
of view it is rather easy to circumvent DNS blocking45 either by
using another DNS server, such as Google's DNS servers, or by
using a proxy server or a Virtual Private Network (VPN)
server.46 It is consequently highly doubtful whether this
technique meets the Telekabel decision's effectiveness
standard. Moreover, if only certain parts of a website contain
infringing content, there is a risk of over blocking.47
In the case of IP address blocking the target of the blocking
injunction is the IP address of the infringing website. Here too,
the use of proxy or VPN servers can circumvent the blocking
rather easily. Does IP blocking meet the Telekabel decision's
effectiveness standard? While it is easy to assume that makes
it a little more difficult to access the blocked website, it is less
certain that it discourages serious internet users, who are
using the services of the addressee of that injunction from
accessing the subject-matter made available to them. Of-
course, the use of proxy servers also has certain disadvan-
tages which could count as factors which strengthen the
dissuasiveness of IP blocking. Indeed, web browsing via a
proxy can often be agonizingly slow and insecure.
Moreover, IP address blocking hides the danger of over
blocking48 in case the same IP address is shared by many
43
Feiler, Website Blocking Injunctions under EU and U.S.
Copyright LawdSlow Death of the Global Internet or Emergence
of the Rule of National Copyright Law? op.cit. Husovec, op.cit.
44
D. Wang, What is a DNS block and 3 ways to get around it, at:
http://blogjunkie.net/2011/06/get-around-dns-block-filter.
45
Feiler, op.cit.
46
Wang, What is a DNS block and 3 ways to get around it, op.cit.
47
Toby Headdon, Beyond liability: on the availability and scope
of injunctions against online intermediaries after L'Oreal v Ebay, E.
I.P.R. 2012, 34(3), 141.
48
Feiler, Website Blocking Injunctions under EU and U.S.
Copyright LawdSlow Death of the Global Internet or Emergence
of the Rule of National Copyright Law? See also par. 6 of the UK
second Newzbin2 judgement: At all events, the Studios now accept
that the order should refer to IP address re-routing and not IP address
blocking. It appears that IP address blocking could lead to over-
blocking of sites or pages that ought not to be blocked.
websites or in case of infringing websites that use additional
mirrored servers.49 Since the lawfulness of the content might
vary from jurisdiction to jurisdiction, depending on the
application of copyright exceptions which vary from one State
to another, as was noted in the Scarlet/SABAM ruling50, over
blocking might seriously affect an Internet user's freedom to
receive lawful content.51
Finally, while state of the art IP blocking might be a relatively
effective means at present of preventing IP infringement,
nothing precludes the possibility that, in the short or medium
term future, perfection of circumvention techniques may render
IP blocking completely ineffective. So, in technology dominated
rhetoric, one could argue that blocking and anti-blocking tech-
niques will compete with one another as technology advances. A
similar rhetoric has led to the establishment of the legal pro-
tection of technological protection measures in the WIPO treaties
and the Infosoc Directive. This path, however, has proved to be
hopeless so, even if one could imagine that offering access to
blocked copyright infringing content by the backdoor (such as via
proxies), similar to circumventing TPS (the terminal proxy server
for voice over Internet Protocol (VoIP)) could be rendered an
autonomously infringing and punishable act itself, the effec-
tiveness standard could still be extremely difficult to reach.
So, what next? The question of the URL blocking or deep
packet inspection arises again. Deep Packet Inspection (DPI)
tools that identify the illegal content have the ability to access
all parts of all the packets (the smallest units of information
transmitted on the Internet) that are sent during an online
communication.52 It is clear from the SABAM/Scarlet decision
that the deeper the dig into the packets, the greater the like-
lihood that Article 15 of the E-Commerce Directive will be
contravened.53 On the other hand, it is plain that the court did
not rule out generally filtering and blocking of electronic
communications,54 but only the surveillance system whose
scope of application was insufficiently defined ratione materiae,
ratione personae and ratione temporis.55 On this ground, some
49
What is IP Address Blocking and Why It Doesn't Work Effec-
tively to block CSAI, http://www.watchdoginternational.net/
index.php/filtering-technology/57-ip-address-blocking-at-isp-
level/62-what-is-ip-address-blocking-and-why-it-doesnt-work-
effectively-to-block-csai.
50
It is not contested that the reply to the question whether a
transmission is lawful also depends on the application of statu-
tory exceptions to copyright which vary from one Member State
to another. Moreover, in some Member States certain works fall
within the public domain or can be posted online free of charge
by the authors concerned.
51
G. Smith, SABAM/Scarlet meets Newzbin2 e but will they play
nicely together? http://cyberleagle.blogspot.gr/2011/11/
sabamscarlet-meets-newzbin2-but-will.html.
52
T. Margoni, M. Perry, Deep Pockets, Packets, and Harbors,
Ohio State Law Journal 2013, Vol.: 74:6, 1199.
53
G. Smith, SABAM/Scarlet meets Newzbin2 e but will they play
nicely together? http://cyberleagle.blogspot.gr/2011/11/
sabamscarlet-meets-newzbin2-but-will.html.
54
See: LOreal v. eBay, case C-324/09 at par. 131e135 and Scarlet v.
Sabam, case C-70/10, at par. 30e32.
55
E. Psychogiopoulou, Copyright enforcement, human rights
protection and the responsibilities of internet service providers
after Scarlet, E.I.P.R. 2012, 34(8), 555 C. Castets-Renard, Droit de
l'Internet, droit francais et europe en, Montchrestien, lex-
tensoe ditions, 2012, p. 294, no 786.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
courts in Europe tend to impose on intermediaries a some-
what proactive duty to filter out recurring infringing activity or
content.56
But how deep and how detailed an inspection will be
permitted before such actions are considered as non-
proportionate and harmful for Internet users' freedoms? In
the UK, in the Newzbin2 case57 Judge Arnold made a distinction
between minimal analysis, summary analysis and detailed
analysis of the contents of data packets. The judgment does
not provide sufficient technological detail, but it can be
concluded that if the implementation of the blocking injunc-
tion does not require the ISP to monitor all customer data, it
could be assumed that no general obligation has been
imposed. Likewise, if only a minimal or summary analysis
of the packets is applied by the ISP, probably shallow packet
inspection (SPI)58 then there is a stronger argument that the
measure is proportionate.59
4. Application of the asylum to Online
Service Providers (OSPs): the Delfi case and the
intermediary's duty of care
4.1. The Delfi case: surprise and criticism
In the Delfi case60, the ECtHR dealt for the first time with the
issue of liability of OSPs. More precisely, the Court had to
determine whether the civil liability imposed by a decision
Estonian Supreme Court on Delfi (one of the largest news
portals in Estonia) for the defamatory comments posted by
its readers, was a restriction of freedom of expression that
was not compatible with the European Convention of
Human Rights. In order to decide the issue, the ECHR
examined firstly the context of the comments; secondly, the
measures applied by the Delfi in order to prevent or remove
56
B. Martinet Farano, Internet Intermediaries' Liability for
Copyright and Trademark Infringement: Reconciling the EU and
U.S. Approaches, TTLF Working Paper No. 14, 2012, http://www.
law.stanford.edu/organizations/programs-and-centers/
transatlantic-technology-law-forum/ttlfs-working-paper-series.
57
[2011] EWHC 2714 (Ch).
58
Shallow packet inspection (SPI) refers to the inspection of packet
headers for optimization of packet routing, detection of network abuse,
and statistical analysis. Such inspection does not disclose the contents of
data packets. It is a less sophisticated version of the deep packet in-
spection (DPI) technique that can be used to block packets based on their
content. Unlike DPI, SPI makes broad generalities about traffic based
solely on evaluating the packet header. Although shallow packet in-
spection cannot provide the same refined/detailed traffic assessments as
DPI, it is much better at handling a large volume than DPI.(source:
http://itlaw.wikia.com/wiki/Shallow_packet_inspection).
59
Toby Headdon, Beyond liability: on the availability and scope
of injunctions against online intermediaries after L'Oreal v Ebay,
E.I.P.R. 2012, 34(3), 141. Furthermore, DPI is at odds with net
neutrality. The latter presupposes data packets neutrality that
means that an ISP shall provide to all its customers an open and
equal access to online content without any discrimination. See:
Naqeeb Ahmed Kazia and Shringarika Priyadarshini, Network
neutrality: what, where and why? C.T.L.R. 2012, 18(7), 227e236.
60
Case of Delfi AS v Estonia, (Application no. 64569/09), Judgment
of 10 October 2013. The case was referred to the Grand Chamber
in 17/02/2014.
63
defamatory comments, thirdly, the liability of the actual
authors of the comments as an alternative to Delfi's liability;
and fourthly the consequences of the domestic proceedings
for Delfi.
As regards the first issue, the context of the comments, the
Court found that since the publication of the article in Delfi
concerned a matter of great interest for readers, there was a
higher-than-average risk that the negative comments could
go beyond the boundaries of acceptable criticism and reach
the level of gratuitous insult or hate speech. The Court
concluded then that Delfi was expected to exercise a degree of
care in order to avoid being held liable.
Secondly, the Court analyzed the measures applied by Delfi
in order to prevent or remove the defamatory comments.
These involved using a prior automatic filtering system of
deletion of comments based on stems of certain vulgar words
and a notice-and-take-down system. In addition, on some
occasions, the administrators of the portal removed inap-
propriate comments on their own initiative. The Court found
that none of these mechanisms ensured sufficient protection
for the rights of third persons. Furthermore, the Court
considered the role of Delfi in respect of the publication of
comments. Delfi was a professional news portal that had an
interest in making public readers' comments, since the com-
pany's advertising income depended on the number of readers
and comments. Thus, the Court found that Delfi exercised a
substantial degree of control over the comments published
since it was in a position to know about an article to be pub-
lished, to predict the nature of the possible comments
prompted by it and, above all, to take technical or manual
measures to prevent defamatory statements from being made
public.61
In respect of the liability of the content authors, the Court
stressed that since the contents were anonymous it would be
very difficult for injured persons to establish the identity of
the persons to be sued. Keeping in mind the State's positive
obligations under Article 8, that may involve the adoption of
measures designed to secure respect for private life, the
Court was not convinced that measures allowing an injured
party to bring a claim only against the authors of defamatory
comments would have, in the present case, guaranteed
effective protection of the injured person's right to private
life.62
Finally, as regards the consequences of the domestic pro-
ceedings for Delfi, the Court took into consideration that the
domestic courts did not make any orders as to how it should
ensure the protection of third parties' rights, leaving the
choice to the applicant. Thus no specific measures, such as a
requirement of prior registration of users before they were
allowed to post comments, monitoring comments by the
applicant company before making them public or speedy re-
view of comments after posting, to name just a few, were
imposed on the applicant. The Court considers the leeway left
to Delfi in this respect to be an important factor reducing the
severity of the interference with its freedom of expression.63
Moreover, the sum of 320 Euros in non-pecuniary damages
61
Par. 89.
62
Par. 91.
63
Par. 90 and Par. 93.
64 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
that Delfi had to pay was not considered as disproportionate.
As a result, the Court found that imposing a duty of care and
accountability on Delfi was compatible with the protection of
freedom of expression under article 10 of the Convention.
The Delfi decision has been generally perceived as an
extremely nasty surprise that shows a significantly poor un-
derstanding of European OSP's safe harbor by the ECtHR.64 The
Court side-stepped the E-Commerce Directive's regime65 and
decided upon liability using mainly a classic media law
approach.66 By imposing the obligation to exercise an ex ante
control over readers' comments on an online news platform,
the Court dynamites the foundations of the ex post monitoring
mechanism set by the Directive and the prohibition of
imposing general monitoring obligations to ISPs and OSPs that
is provided by article 15 of the Directive.67
There are some other dark points in the decision. For
example, the fact that Delfi had from time to time in the past,
on its own initiative, removed defamatory content also
strengthened its accountability. Nonetheless, condemning an
economic operator because in the past they have been dili-
gent, at least in some instances, is not logical. On the other
hand, even if Delfi had been awarded by the Estonian Courts
the status of neutral host provider, the fact that the defama-
tory contents remained in its news portal for six weeks before
their removal is not compatible with the E-Commerce Di-
rective's obligation to expeditiously remove the unlawful
content upon notification.68
After the initial problems coming from the decision, com-
mentators began to explore ways to minimize its importance.
64
Gabrielle Guillemin, Case Law, Strasbourg: Delfi AS v Estonia:
Court Strikes Serious Blow to Free Speech Online, http://inforrm.
wordpress.com/2013/10/15/case-law-strasbourg-delfi-as-v-
estonia-court-strikes-serious-blow-to-free-speech-online-
gabrielle-guillemin/G. Smith, Who will sort out the Delfi mess?
http://cyberleagle.blogspot.gr/2013/10/who-will-sort-out-delfi-
mess.html. According to this commentator, a way to mitigate
Delfi's disastrous effects would be to consider that the ECtHR by
recognizing Delfi's control over the comments it mainly based its
decision on the assumption that Delfi was a publisher and not an
intermediary and, therefore, the decision could be sidelined as
having no application to genuine online intermediaries.
65
Eileen Weinert, Oracle at Delfi e European Court of Human
Rights holds website liable for angry reader comments, Ent. L.R.
2014, 25(1), 31. The Estonian Supreme Court had rejected Delfi's
attempted use of the E-Commerce Directive's provisions, but the
ECHR only considered whether the particular Estonian law under
which Delfi was liable was an unlawful interference with Delfi's
rights or free expression.
66
The Court referred to the Krone Verlag (no. 4) judgment,
where it found that shifting the defamed person's risk to obtain
redress for defamation proceedings to the media company, usu-
ally in a better financial position than the defamer, was not as
such a disproportionate interference with the media company's
right to freedom of expression. See Krone Verlag GmbH & Co. KG
v. Austria (no. 4), no. 72331/01, x 32, 9 November 2006.
67
Member States shall not impose a general obligation on
providers, when providing the services covered by Articles 12, 13
and 14, to monitor the information which they transmit or store,
nor a general obligation actively to seek facts or circumstances
indicating illegal activity.
68
For example in France it was judged that expeditiously
means immediately. See: TGI Toulouse (re f.) 13 mars 2008, Krim
K c/Pierre G, Amen, legalis.net.
The main argument proposed is to assert that it was an
exceptional decision based on the specific facts and circum-
stances of the Estonian case. In this vein, in the High Court of
Northern Ireland ruling in the case J19 and Another v Facebook
Ireland,69 which was decided after Delfi, Gillen J distinguished
the case from Delfi and applied the safe harbor provided by the
UK Electronic Commerce (EC Directive) Regulations 2002.
Nonetheless, commenting on Delfi's possible influence on
OSP's liability, Gillen J made an interesting remark suggesting
that time will tell whether the line of reasoning of the ECHR
in this case is the start of a new movement towards a broader
monitoring obligation of intermediaries or if it is only appli-
cable to the specific events in this case70. This interpretative
option that considers Delfi as the precursor of a movement
towards a bigger involvement of OSPs in content monitoring
will be explored in the last section of this article below.
4.2. The Delfi case as an occasion for a reevaluation of
the OSP's duty of care?
Apart from seeing the case as a major error, a warning or a
marginal one-off decision based on particular facts, the
ECtHR's Delfi decision could be considered as an occasion to
reconsider the OSP's liability exemption regime that has been
established by the E-Commerce Directive and CJEU's case law.
Contrary to connectivity providers' safe harbor expecta-
tions, OSPs' (mainly host providers') asylum has been misun-
derstood,71 scrutinized and from time to time seriously
undermined by national courts on the grounds of general tort
law, classic media law responsibility or special regimes, such
69
J19 and Another v Facebook Ireland [2013] NIQB 113, on line
accessible at: http://www.bailii.org/nie/cases/NIHC/QB/2013/113.
html.
70
Par. 31 of the ruling.
71
A recent example of misunderstanding of the intermediaries'
safe harbor by national courts is the Cypriot reference to the CJEU
in the Papassavas case (Case C291-/13-,-). In that case, the Cypriot
court (Eparchiako- Dikastirio- Lefkosias-) was mainly asking
whether editorial content posted by a newspaper in its free
accessible website, whose income is generated by advertisement,
was covered by the E-Commerce-'-s Directive safe harbor. The
CJEU clarified that article 2(a) of Directive 2000/31/EC must be
interpreted as meaning that the concept of information society services,
within the meaning of that provision, covers the provision of online in-
formation services for which the service provider is remunerated, not by
the recipient, but by income generated by advertisements posted on a
website and that the limitations of civil liability specified in Articles
12 to 14 of Directive 2000/31 do not apply to the case of a newspaper
publishing company which operates a website on which the online
version of a newspaper is posted, that company being, moreover,
remunerated by income generated by commercial advertisements posted
on that website, since it has knowledge of the information posted and
exercises control over that information, whether or not access to that
website is free of charge. For a comment of this decision see:
Husovec, CJEU on Applicability of the Safe Harbors to Free-of-
Charge Websites, at: http://www.husovec.eu/2014/09/cjeu-on-
applicability-of-safe-harbors.html and L. Woods, Case Law,
Luxembourg: Papasavvas, Civil liability for Internet publishing:
the CJEU clarifies the law, at: http://inforrm.wordpress.com/2014/
09/16/case-law-cjeu-papasavvas-civil-liability-for-internet-
publishing-the-cjeu-clarifies-the-law-lorna-woods/.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
as the German disturber liability (Sto rerhaftung) approach.72
However, it is submitted that there is a growing jurispruden-
tial tendency towards greater accountability of OSPs.73 At the
same time, the standards of duty of care imposed by national
courts continue to differ significantly from jurisdiction to
jurisdiction74 and from case to case.
Indeed, it remains unclear what is the role and duty of care
expected of OSPs. The multiple and complex activities often
undertaken by them render the tripartite distinction of the E-
Commerce Directive rather simplistic and its application in
practice a complex judicial task.
Expecting OSPs to act as completely passive vectors of
content has led to somewhat perverse effects. Indeed, the
neutrality prerequisite75 for the application of the exception
from liability leads to what has been described as the Good
Samaritan paradox. This suggests that introduction of
voluntary and well-intended measures by service providers in
order to detect or prevent the making available of harmful
content would lead to exclusion from the liability restriction.76
The neutrality requirement for the limitation of liability of
hosting providers has been seriously put at doubt by Advocate
72
See: Thomas Hoeren, Silviya Yankova, The liability of internet
intermediaries e the German perspective, IC 2012, 43(5), 501e531.
73
Steven James, Digesting Lush v Amazon and UPC Telekabel:
are we asking too much of online intermediaries?, Ent. L.R. 2014,
25(5), 176 Anette Ga rtner, GEMA v RapidShare: German Federal
Supreme Court extends monitoring obligations for online file
hosting providers, E.I.P.R. 2014, 36(3), 197e200De Beer, Jeremy,
and Christopher D. Clemmer. Global Trends in Online Copyright
Enforcement: A Non-Neutral Role for Network Intermediaries?.
Jurimetrics (2009): 375e409. See in this respect: Cosmetic Warriors
Ltd v Amazon.co.uk Ltd; sub nom. Cosmetic Warriors Limited, Lush
Limited v Amazon.co.uk Limited, Amazon Eu Sarl [2014] EWHC 181
(Ch) BGH, judgment of July 12, 2012 d I ZR 18/11 (Alone in the
Dark)BGH, judgment of August 15, 2013 d I ZR 80/12 (File-
Hosting Service) [2013] GRUR 1030.
74
See in this respect a comparative analysis of UK, French and
German law in: Chr. Angelopoulos, Beyond the Safe Harbors:
Harmonising Substantive Intermediary Liability for Copyright
Infringement in Europe, Intellectual Property Quarterly, 2013e3,
pp. 253e274.
75
According to this criterion, the exemptions from liability only
cases in which the activity of the information society service
provider is of a mere technical, automatic and passive nature,
which implies that service provider has neither knowledge of nor
control over the information which is transmitted or stored. In
order to establish whether the liability may be limited under
Article 14 of Directive 2000/31, it is necessary to examine whether
the role played by that service provider is neutral, in the sense that
its conduct is merely technical, automatic and passive, pointing to
a lack of knowledge or control of the data which it stores. See:
CJEU, Google France SARL, Google Inc. V Louis Vuitton Malletier SA (C-
236/08), Google France SARL v Viaticum SA, Luteciel SARL (C-237/08),
And Google France SARL v Centre national de recherche en relations
humaines (CNRRH) SARL, PierreeAlexis Thonet, Bruno Raboin, Tiger
SARL (C-238/08), joined Cases C236-/08, C237-/08 and C238-/08,
Judgment of 23 March 2010, at [112],- [113] (114). The condition of
neutrality- -- -appeared for the first time in Advocate s Maduro
Opinion in aforementioned joined Cases C236-/08, C237-/08 and
C238-/08,.- (See: Opinion of Advocate General Poiares- Maduro in
joined Cases C236-/08, C237-/08 and C238-/08 Google France and
Google v. Louis Vuitton, 22 September 2009, paragraphs 142e143).
76
Van Eecke, Online service providers and liability (2011) 48 C.
M.L.Rev., p. 1483.
65
a
Ja skinen in respect of OSPs in L'Oreal Ebay,77 while a number
of commentators have also taken this view.78
Nonetheless, the neutrality requirement must not be un-
derstood as a strict demand for complete passivity and
detachment of the intermediary in respect of unlawful con-
tent.79 This was also made clear in the L'Oreal v eBay case,
where the Court recognized that the injured party's notifica-
tion was not the only way to obtain knowledge of an illegal
activity or information, but that the latter can be discovered by
an investigation undertaken on the initiative of the host pro-
vider80. So, being active in order to detect and remove
77
Opinion of AG Ja a skinen on C-324/09 L'Ore al and others v.
eBay paragraph 141. According to Ja a
skinen recital 42 of the
directive, which speaks of exemptions, would refer to the ex-
emptions discussed in the following recital 43 which expressly
concern only mere conduit and caching.
78
Van Eecke, op.cit. I. Walden, Mine host is searching for a
neutrality principle!, Computer Law and Security Review 2010, Vol.
26, pp. 207e208 S. Lemarchand, M. Barbier, Le fournisseur
d'he bergement au sens de l'article 14 de la directive n
2000/31 et la
(nouvelle) condition de neutralite , Revue Lamy Droit de l'Immate riel
2009; n
54, pp. 52e56 S. Le Marchand, A.S. Lampe, L'arre ^t eBay c/
L'Ore al de la CJUE du 12 juillet 2011 revisite les conditions de la
qualification de fournisseur d'he bergement au sens de l'article 14 de
la directive e-commerce, Revue Lamy Droit de l'Immate riel 2011,
n
75, pp. 55e56. It is noteworthy that the demand for neutrality could
lead also to the opposite effect of augmentation of the hosting pro-
vider liability, since in case the latter deploys further activities (not
only hosting) there is a risk of losing the safe harbor's privilege. This
has been the position mainly in France where intermediaries were
characterized as publishers (e diteurs) instead of hosting providers in
case they offered additional services. Nonetheless, the French Su-
preme Court (Cour de Cassation) later reversed its previous position.
The relaxation of the position of the Court has been subject to critics.
See: A. Lucas, H.J. Lucas, A. Lucas-Schloetter, Traite  de la propriete
litteraire et artistique, 4e edition, LexisNexis, 2012, p. 908, no 1110.
79
The bigger engagement of ISPs and OSPs in the fight against
copyright infringement is also in line with the growing tendency
towards the collaboration of all the stakeholders in order to adopt
self-regulatory solutions in the form of codes of conduct. See on this
issue: B. Hugenholtz, Codes of conduct and copyright enforcement
in cyberspace, in: I. Stamatoudi, Copyright enforcement and the
Internet, Kluwer Law International, Wolters Kluwer, Law and
Business, 2010, p. 303 (the author criticizes the disrespect of some of
these codes to fundamental rights of users) C. Castets-Renard, Droit
de lInternet, droit francais et europe en, op.cit., p. 297, no 792, 793
(apart from the positive effects of self-regulation the author criti-
cizes the unavowed motivations of ISPs to collaborate in the
establishment of such codes, such as commercial advantages
coming from the preferential distribution of some contents).
80
See CJEU, C-324/09 L'Oreal and others v eBay 12 July 2011, paragraph
122: The situations thus covered include, in particular, that in which
the operator of an online marketplace uncovers, as the result of an
investigation undertaken on its own initiative, an illegal activity or
illegal information, as well as a situation in which the operator is
notified of the existence of such an activity or such information. In
the second case, although such a notification admittedly cannot
automatically preclude the exemption from liability provided for in
Article 14 of Directive 2000/31, given that notifications of allegedly
illegal activities or information may turn out to be insufficiently
precise or inadequately substantiated, the fact remains that such
notification represents, as a general rule, a factor of which the na-
tional court must take account when determining, in the light of the
information so transmitted to the operator, whether the latter was
actually aware of facts or circumstances on the basis of which a
diligent economic operator should have identified the illegality.
66 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
unlawful content is not incompatible with the neutrality
requirement.81
Another significant finding of the L'Oreal v eBay judgment
lies in the evaluation of the possession of awareness of illicit
activity or content. The Court introduced in this respect the
diligent economic operator's standard. This standard builds
on and further elaborates the criterion of constructive
knowledge that has been established in Article 14(1)(a) of the
E-Commerce Directive.82
The Court stated that even in cases in which the operator
has not played an active role, it cannot rely on that exemption
from civil liability if it is aware of facts or circumstances on the
basis of which a diligent economic operator should have
realized that the online offers for sale were unlawful and, in
the event of it being so aware, failed to act promptly to remove
the data concerned from its web site or to disable access to
them.83
The standard of a diligent economic operator's appreci-
ation of the unlawfulness is a new piquant ingredient in the
OSPs liability exceptions recipe that has to be further explored
by the CJEU.
In a similar context, the legislative history of the US Digital
Millennium Copyright Act84 suggests that knowledge of facts
and circumstances from which infringing activity is apparent
would arise from red flags that would lead a reasonable
person operating under similar circumstances to conclude
that infringement is occurring.85 In which cases then will it be
81
Recital 48 of the Directive also states that is still possible for
the Member States to apply duties of care, which can reasonably
be expected from them and which are specified by national law,
in order to detect and prevent certain types of illegal activities.
However these duties of care have been interpreted to mean the
duties imposed by criminal and public law e.g. aid in investiga-
tion of crime or security matters, not as extending to duties under
private law, e.g., to help prevent copyright infringement e since
that would negate the point of Article 15 and indeed Art 14
generally. See: Edwards, Lilian. Role and responsibility of the
internet intermediaries in the field of copyright and related
rights. (2011) report available at http://www.wipo.int/export/
sites/www/copyright/en/doc/role_and_responsibility_of_the_
internet_intermediaries_final.pdf, last accessed 17. 3. 2014.
82
The provider is exempted from liability if it does not have
actual knowledge of illegal activity or information and, as regards
claims for damages, is not aware of facts or circumstances from
which the illegal activity or information is apparent. The
emphasis in italics is of the author. See: Chr. Reed, Computer Law,
7th ed. Oxford University Press, 2011, p. 313 Pablo Baistrocchi, Li-
ability of Intermediary Service Providers in the. EU Directive on
Electronic Commerce, op.cit. According to Walter, the safe harbor
does not apply in cases of actual knowledge or eat least gross-
negligence of the hosting provider. See: Walter, in Walter, von
Lewinski, op.cit., p. 1091, no 11.8.20.
83
See CJEU, C-324/09 L'Oreal and others v eBay 12 July 2011,
paragraph 120.
84
17 USC 512(c)(1), 2006).
85
Dan L. Burk, Toward an Epistemology of ISP Secondary Lia-
bility, School of Law, University of California, Irvine, Legal Studies
Research Paper Series No. 2011e45 at: http://ssrn.com/
abstract1920050. However, as the author notes courts have
been reluctant to hold that suspicious situations or activities could act as
so-called red flags that should alert ISPs to the presence of infringing
materials or activities (Corbis v. Amazon, 2004; Perfect 10 v.CCBill,
2007).
apparent in the common sense of a diligent and reasonable
OSP that certain content is unlawful? Could the appropriate
diligence standard be prescribed by best practices and codes
of conduct?
It can be assumed that, since the way various hosting in-
termediaries operate vary depending on their business
structure and their general design of operation of service,
being aware of facts or circumstances on the basis of which a
diligent economic operator should have realized the unlaw-
fulness may vary from case to case. Moreover, the concept of
diligence is a concept rooted in non-harmonized national
tort law, Member Stares' traditions and, therefore, risks to be
interpreted in a non-homogenous manner. It is, however,
plain that being passive and not acting to promptly remove
the infringing data or to disable access to them while an
averagely diligent, reasonable economic operator should have
reacted, renders the safe harbor concept inapplicable.
But does this diligence duty lead to an obligation of pro-
active monitoring of possibly infringing content as the Delfi
decision might suggest? General monitoring of all content
stored and communicated on an online social platform has
been ruled out both by article 15 of the E-Commerce Directive
and the Netlog judgment.86 Nonetheless, specific action or
even specific monitoring ex ante is not prohibited. Selective
monitoring schemes might produce a high level of desired
results if OSP's subscribers, knowledgeable of the possibility
that their internet activities are being monitored, react by
curtailing their illegal activities.87
The most important outcome of Delfi, even if it is reversed
by the Grand Chamber, is that the proper balancing of
fundamental rights at stake requires a bigger interest and a
certain degree of diligence on the part of OSPs who cannot
turn a blind eye towards activities that are flagrantly unlawful.
This presupposes a partial connection to the OSPs' safe har-
bor, at least insofar as this has been perceived and understood
up to now.
How this will be achieved by avoiding privacy intrusion
and by safeguarding Internet users' rights to receive and
impart information remains to be explored, since costly
effective technological solutions which do not unreasonably
restrict the freedom to conduct business might appear in the
medium or short term.
Furthermore, another essential reminder of Delfi is that,
keeping in mind the State's positive obligations for the pro-
tection of human rights, the absence of any liability at all
could infringe other conflicting rights. As Martin Husovec
notes, this can also have practical significance for rights
holders of intellectual property rights, whose rights are
guaranteed by virtue of Article 1 of the First Protocol of the
ECHR.88 In cases where the anonymity of the direct infringers
86
CJEU, Belgische Vereniging van Auteurs, Componisten en Uitgevers
CVBA (SABAM) v Netlog NV, Case C360-/10, Judgment of 16
February 2012.
87
Ronald J. Mann & Seth R. Belzley, The Promise of Internet
Intermediary Liability, William & Mary Law Review 239 (2005), vol.
47, Issue 1, accessible on line at: http://scholarship.law.wm.edu/
cgi/viewcontent.cgi?article1225&contextwmlr.
88
M. Husovec, ECtHR rules on liability of ISPs as a restriction of
freedom of speech, Journal of Intellectual Property Law & Prac-
tice, 2014, Vol. 9, No. 2, p.109.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 3 1 ( 2 0 1 5 ) 5 7 e6 7
is completely waterproof, such as in Greece89 or in Cyprus,
where it is not possible to lift the confidentiality of corre-
spondence's constitutional veil for the sanction of copyright
infringements, there is a serious risk of violation of the pro-
tection of intellectual property as a human right.
5. Conclusion
Plato said that Eunomia is the state of obedience of citizens
under good laws90. The ideal of Eunomia presupposes then,
two main elements: laws that are good in a technical sense
and, even more significantly, laws that persuade people to
apply them. Establishing good laws for the Internet appears
as a chimera, especially if one thinks that the Internet has
been perceived at the beginning as an out of law zone, where
the freedom to communicate, more as a state of art and a state
of mind than in a legal sense, superimposes every legal norm.
14 years ago in Europe the E-Commerce Directive crystal-
lized the consensus existing at the time between the various
stakeholders over the question of ISP's exoneration from lia-
bility. Since then, case law, both national and supranational,
has not stopped building brick by brick upon this regime, by
89
Intellectual property infringement is not in the list of serious
crimes for which the lift of the confidentiality of communications
is permitted by the Law 2225/1994. In a similar line of thinking,
the tri-member Court of appeal of Thrace judged that it was not
possible to lift the confidentiality of communications veil in a
case of civil liability for the anonymous comments posted on a
blog. See: Tri-member Court of appeal of Thrace (r4Qra kh2) 91/
2012, DiMEE 2/2012, p. 230.
90
yn
oma piqarca nomun spoydaun.
67
providing clarifications, interpretations, enhancements, spe-
cializations, and all too often confusion. The demand for a fair
reconciliation of conflicting interests is even more imperative
today than it was in 2000 and this is an undisputable finding of
both the CJEU's Telekabel judgment and the ECtHR Delfi
decision.
Sticking to the precise details of these decisions is some-
how like not seeing the wood for the trees. These judgments
could be seen as an opportunity to reconsider the role of ISPs
in IP enforcement strategies, starting from the safe harbor
regime of the E-Commerce Directive. We have arrived at a
critical point where, purely temporarily in the nature of pro-
cedural measures, injunctions against ISPs are perceived as
the main or even de facto sole-legal remedy for copyright
Internet infringement. At the same time, perhaps showing
complete indifference for the content stored on the OSPs
server, it is awarded with the grace of safe harbor. Both are
somewhat extreme situations and instead of trying to reach
towards a balance of interests inside such extremities, it
would have been better to strive for a more balanced IP
enforcement regulation.