The EUIPO has published an 'IPR Enforcement Case-Law Collection' on the liability and obligations of ISPs in the EU. Prepared by the EUIPO's European Observatory on Infringements of Intellectual Property Rights, the collection pulls together cases from the CJEU and EU national courts between 2016 and the beginning of 2019, and aims to provide an overview of the latest developments in the area of online intermediary liability and to present and summarise the main conclusions of the relevant cases. It also provides a useful reminder of the EU legislative instruments to which the case-law has sought to give effect.
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.
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