European ISPs Want Legal Certainty, Not More Liability
COLOGNE, Germany -- ISPs need legal clarity on liability for content from others, and the EU E-Commerce Directive should provide it, German Judge Helmut Hoffmann at the annual conference of the Association of the German Internet Economy, called Eco. Hoffmann told us. “There is a need to clarify liability for different types of providers and also for search providers, which aren’t mentioned in the directive now,” he said. “It would be a mess if national legislators in the EU start passing national versions for this.” For now, courts are acting as substitute legislators, he said. “Judges just cannot wait for new legislation from either Berlin or Brussels. They have to decide their cases.”
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
German courts tend to widen control obligations regarding outside content, especially on big service providers, Hoffmann said. In an explosive summer decision, the Federal Court of Justice ruled that eBay must be judged the “offender” when others use it to violate competitors’ legal rights.
The trend to expand liability of ISPs and other service providers makes Eco lawyer Oliver Sueme suspicious of any EU clarification. “We faced a push by rights owners and protection of minor organizations to hold hosts and access providers accountable during the first review procedure of the E-commerce Directive,” he said. Though satisfied with the E-commerce Directive regulatory approach, he said he supports clarification of the tiered accountability of content, host, and access providers in German national law, he said.
Rapidshare, which has been taken to court by GEMA, a collecting rights society for 60,000 lyricists, composers and musical publishers over distribution of copyrighted works by its users, is in a court case it filed against GEMA’s claims. GEMA failed to get a far-reaching preliminary injunction that would have obliged Rapidshare to check widely for customers’ pirate files. Rapidshare must check only a special website that can help find questioned content. That company’s lawsuit is meant “to get clarity not only for us, but for the whole hosting industry,” Rapidshare’s Bobby Chang told us.
Coherent regulation of telecommunication and media, and stronger recognition of self-regulatory approaches to protect minors on the Internet are on Google’s “Christmas wish list,” said Annette Kroeber Riel, European policy counsel for Google Germany. “We also want an privileged position as to liability for search engine providers.” Search engine companies don’t fit into EU law’s provider categories, said Hoffmann, calling that a problem for judges.
Riel’s wish list also includes effective regulation of broadband markets, opening up frequency allocation, and net neutrality. Neutrality was discussed by a panel on the Next Generation Network at the Eco Conference. NGN is the last chance for conventional telcos to catch up in the Internet economy, said Niklas Blum, senior researcher at the Fraunhofer Fokus Institute. His institute installed the parts needed to build a control layer and service provisioning layer on the access networks combined over an all-IP connectivity layer.