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 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/.
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)
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