Out-Law has an interesting op-ed piece about the decline of intermediary safe harbours under the E-Commerce Directive. The basic premise of the article is that a combination of factors — the increasingly broad meaning given to constructive knowledge, liability for repeat uploads, duties to monitor for infringement — means that the notice-and-takedown system is providing far less meaningful protection for hosts, ISPs and web services than it once did. From the article:
[hosts and service providers operating in Europe] have none of the clarity that Judge Louis Stanton’s Google and Viacom ruling gives to their position in US law. It is not true to say that hosts’ rights have been completely eroded. What these various cases mean, in the absence of a precedent-setting ruling on constructive knowledge, is that there is doubt about exactly what hosts’ rights are. And where there is doubt and uncertainty, there should be caution. It is impractical for ISPs, search engines, hosts and other service providers to monitor all use of their services, but without a clear signal from the courts on what their liabilities are, such companies will have to be more vigilant about the use of their services in Europe than in the US.
To this list, I’d add the fact that the E-Commerce Directive safe harbours are drafted in such a way that they often apply only to a small subset of intermediaries’ services: ‘mere’ transmission or storage, without more. In an age of content-driven business models, suggested search queries, deep search and user-generated content, this makes their application to web application providers far from uncertain.
