How could the current discussions on e-Commerce impact Internet Service Providers liability?

By enero 27, 2011diciembre 20th, 2021Análisis

What is at stake?

The widespread use of the Internet in society and the development of online services created ever increasing opportunities for communication, but also brought with it the challenges of illegal content online. Politicians and the industry are confronted today with the need to fight against cybercrime, intellectual property right infringements, child sexual abuse images, to name some, and Internet Service Providers (ISPs) are at the center of such discussions.

The main stakeholders (including politicians and governments) are advocating for an increasing involvement of the ISP industry to face these challenges and it could be expected that discussions about the e-commerce Directive could lead the European Commission to start a revision of the Directive with ISPs requested to invest even more in technological measures in order to meet new legislative obligations. This circumstance would be particularly true for new types of providers appeared since the adoption of the Directive in 2000, such as social networking websites, search engines, hyperlinks, blogs providers, chat rooms, web 2.0 and content aggregators.

Background information

Directive 2000/31/EC, on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (e-Commerce Directive), created the legal framework for electronic commerce at European level, and through its transposition in Member States, at national level. The Directive defines and limits the liability regime of Internet access providers, hosting and caching providers. Indeed, the e-Commerce Directive provides that an Internet Services Providers is not liable for the information transmitted (mere conduit status) or stored, unless if aware of its illegality. Additionally, the Directive prevents the imposition by governments of any general obligation to monitor the information transmitted or stored.

The e-Commerce questionnaire

The European Commission launched in August a public consultation on the e-Commerce Directive in the form of a questionnaire addressing the public and the private sectors, NGOs and individual citizens. Through this consultation, the European Commission wants to assess the barriers to e-commerce in the European Union and evaluate the implementation of the e-commerce Directive at national level. The questionnaire dedicates a special section to the “Interpretation of the provisions concerning intermediary liability in the Directive”.  Specific questions focus on the possible implementation of filtering technologies to face illegal content online. Based on the input received by the respondents, the Commission will draft a Communication in the coming months and suggest possibly recommendations on how to improve the Directive.

Recommended related websites and links:

European Commission:

Questionnaire on e-Commerce: