Internet Service Providers Liability in Spain

The article focuses on the current situation of Spanish case law on ISP liability. It starts by presenting the more salient peculiarities of the Spanish transposition of the safe harbours laid down in the E-Commerce Directive. These peculiarities relate to the knowledge requirement of the hosting safe harbour, and to the safe harbour for information location tools. The article then provides an overview of the cases decided so far with regard to each of the safe harbours. Very few cases have dealt with the mere conduit and the caching safe harbours, though the latter was discussed in an interesting case involving Google’s cache. Most cases relate to hosting and linking safe harbours. With regard to hosting, the article focuses particularly on the two judgments handed down by the Supreme Court that hold an open interpretation of actual knowledge, an issue where courts had so far been split. Cases involving the linking safe harbour have mainly dealt with websites offering P2P download links. Accordingly, the article explores the legal actions brought against these sites, which for the moment have been unsuccessful. The new legislative initiative to fight against digital piracy – the Sustainable Economy Bill – is also analyzed. After the conclusion, the article provides an Annex listing the cases that have dealt with ISP liability in Spain since the safe harbours scheme was transposed into Spanish law.

Liability for Copyright Infringements on the Internet: Host Providers (Content Providers) - The Geman Approach

Copyright infringements on the Internet affect all types of media which can be used online: films, computer games, audio books, music, software, etc. For example, according to German studies, 90% of all copyright violations affecting film works take place on the Internet. This storage space is made available to such infringers, as well as to others whose intentions are legal, by hosting providers. To what extent do hosting providers have a duty of care for their contribution to the copyright infringements of third parties, i.e. their users? What duties of care can be reasonably expected of hosting providers to prevent such infringements? These questions have been heavily debated in Germany, and German courts have developed extensive case law. This article seeks to examine these questions by assessing German jurisprudence against its EU law background.

Injunctions against Innocent Third Parties: The Case of Website Blocking

The paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper.