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DELFI AS v. ESTONIA JUDGMENT
the field of technical standards and regulations and of rules on Information
Society services, as amended by Directive 98/48/EC, provides as follows:
Article 1
“For the purposes of this Directive, the following meanings shall apply ...
2. ’service’, any Information Society service, that is to say, any service normally
provided for remuneration, at a distance, by electronic means and at the individual
request of a recipient of services.
For the purposes of this definition:
— ’at a distance’ means that the service is provided without the parties being
simultaneously present,
— ’by electronic means’ means that the service is sent initially and received at its
destination by means of electronic equipment for the processing (including digital
compression) and storage of data, and entirely transmitted, conveyed and received by
wire, by radio, by optical means or by other electromagnetic means,
— ’at the individual request of a recipient of services’ means that the service is
provided through the transmission of data on individual request.
An indicative list of services not covered by this definition is set out in Annex V.
This Directive shall not apply to:
— radio broadcasting services,
— television broadcasting services covered by point (a) of Article 1 of Directive
89/552/EEC.”
3. Case-law of the Court of Justice of the European Union
43. In a judgment of 23 March 2010 (Joined Cases C-236/08 to
C-238/08 Google France and Google [2010] ECR I-2417) the Court of
Justice of the European Union considered that in order to establish whether
the liability of a referencing service provider may be limited under
Article 14 of Directive 2000/31, it is necessary to examine whether the role
played by that service provider is neutral, in the sense that its conduct is
merely technical, automatic and passive, pointing to a lack of knowledge or
control of the data which it stores. Article 14 of the Directive on electronic
commerce must be interpreted as meaning that the rule laid down therein
applies to an internet referencing service provider in the event that that
service provider has not played an active role of such a kind as to give it
knowledge of, or control over, the data stored. If it has not played such a
role, that service provider cannot be held liable for the data which it has
stored at the request of an advertiser, unless, having obtained knowledge of