As the EUIPO notes, in the absence of guidance from the EU legislature of the CJEU, national courts have a fair amount of latitude when it comes to categorising ISPs, which has led to an unhelpful disparity between the ways in which different national courts have applied the laws relating to the types of infringements, the types of liability, the availability of defences, such as the 'hosting' defence under the E-Commerce Directive, and the available remedies. The report is a helpful repository of the relevant case-law over the last three years or so, shows the jurisdictions in which ISPs are treated more favourably, and in which less so, by the courts.
It is readily apparent from the report that a harmonised approach as between EU member states on these important issues is plainly lacking, and that legislative and/or CJEU guidance on these issues is needed.
Watch this space
The report also identifies a number of important preliminary rulings currently pending before the CJEU on these issues, including the conditions for exemption from liability under the E-Commerce Directive, and the application of injunctions and damages under the Enforcement Directive.
Next steps
Please contact us if you would like to know how the issues mentioned in this article may affect your organisation.
Authored by Anneka Dalton
