03/02/2020
CURIA - Documents
Recitals 45 and 47 in the preamble to Directive 2000/31 state:
The limitations of the liability of intermediary service providers established in this Directive do not affect the
possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or
administrative authorities requiring the termination or prevention of any infringement, including the removal of
illegal information or the disabling of access to it.
…
Member States are prevented from imposing a monitoring obligation on service providers only with respect to
obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular,
does not affect orders by national authorities in accordance with national legislation.’
Article 1 of Directive 2000/31 states:
‘1.
This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free
movement of information society services between the Member States.
2.
This Directive approximates, to the extent necessary for the achievement of the objective set out in
paragraph 1, certain national provisions on information society services relating to the internal market, the
establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries,
codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States.
…’
Article 12 of that directive, which features in Section 4, entitled ‘Liability of intermediary service providers’, of
Chapter II thereof, provides:
‘1.
Where an information society service is provided that consists of the transmission in a communication
network of information provided by a recipient of the service, or the provision of access to a communication
network, Member States shall ensure that the service provider is not liable for the information transmitted, on
condition that the provider:
(a)
does not initiate the transmission;
(b)
does not select the receiver of the transmission; and
(c)
does not select or modify the information contained in the transmission.
…
3.
This Article shall not affect the possibility for a court or administrative authority, in accordance with Member
States’ legal systems, of requiring the service provider to terminate or prevent an infringement.’
Article 15 of Directive 2000/31, which also features in Section 4 of Chapter II, states:
‘1.
Member States shall not impose a general obligation on providers, when providing the services covered by
Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to
seek facts or circumstances indicating unlawful activity.
2.
Member States may establish obligations for information society service providers promptly to inform the
competent public authorities of alleged unlawful activities undertaken or information provided by recipients of their
service or obligations to communicate to the competent authorities, at their request, information enabling the
identification of recipients of their service with whom they have storage agreements.’
Directive 2001/29
Recitals 16 and 59 in the preamble to Directive 2001/29 state:
… This Directive should be implemented within a timescale similar to that for the implementation of [Directive
2000/31], since that Directive provides a harmonised framework of principles and provisions relevant, inter alia, to
important parts of this Directive. This Directive is without prejudice to provisions relating to liability in that
Directive.
...
In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties
for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an
end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the
possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a
protected work or other subject-matter in a network. This possibility should be available even where the acts
carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such
injunctions should be left to the national law of the Member States.’
Article 8 of Directive 2001/29 states:
‘1.
Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights
and obligations set out in this Directive and shall take all the measures necessary to ensure that those sanctions
and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive.
…
3.
Member States shall ensure that rightholders are in a position to apply for an injunction against
intermediaries whose services are used by a third party to infringe a copyright or related right.’
Directive 2004/48
Recital 23 in the preamble to Directive 2004/48 provides:
‘Without prejudice to any other measures, procedures and remedies available, rightholders should have the
possibility of applying for an injunction against an intermediary whose services are being used by a third party to
infringe the rightholder’s industrial property right. The conditions and procedures relating to such injunctions should
be left to the national law of the Member States. As far as infringements of copyright and related rights are
concerned, a comprehensive level of harmonisation is already provided for in Directive [2001/29]. Article 8(3) of
Directive [2001/29] should therefore not be affected by this Directive.’
Article 2(3) of Directive 2004/48 provides as follows:
‘This Directive shall not affect:
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