Source: ALTIUS via International Law Office, 13 March 2017
“ECJ case law makes it clear that any intermediary whose services are used by a third party to infringe an IP right can be ordered to take measures to end the infringement and prevent further infringements. Although an intermediary may not be required to exercise general and permanent oversight over its customers, it may be forced to take measures to help prevent the same market trader from committing fresh infringements, subject to a recurring penalty payment. Liability can be waived only if service providers, whether offline or online, prove that they have acted expeditiously on receiving information about the illegal character of the acts being committed by third parties.
Online liability remains a hot topic, especially when it comes to copyright. In the context of its Digital Single Market Strategy, the European Commission is discussing the role and responsibilities of online platforms and intermediaries when it comes to tackling copyright infringing content. The commission has addressed the problem of rights holders facing significant difficulties when negotiating with online service providers which store and provide access to large amounts of protected content uploaded by their users, and has suggested imposing an obligation on user-generated content platforms to work towards an agreement with rights holders and to put in place appropriate and proportionate content identification technologies.”