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DELFI AS v. ESTONIA JUDGMENT
of those who made the information available in the first place, as well as the
corresponding right of users to the information.
In all cases, the above-mentioned limitations of liability should not affect the
possibility of issuing injunctions where service providers are required to terminate or
prevent, to the extent possible, an infringement of the law.”
Principle 7: Anonymity
“In order to ensure protection against online surveillance and to enhance the free
expression of information and ideas, member states should respect the will of users of
the Internet not to disclose their identity. This does not prevent member states from
taking measures and co-operating in order to trace those responsible for criminal acts,
in accordance with national law, the Convention for the Protection of Human Rights
and Fundamental Freedoms and other international agreements in the fields of justice
and the police.”
B. European Union documents
1. Directive 2000/31/EC
41. Directive 2000/31/EC of the European Parliament and of the Council
of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on
electronic commerce) provides as follows:
“... (9) The free movement of information society services can in many cases be a
specific reflection in Community law of a more general principle, namely freedom of
expression as enshrined in Article 10(1) of the Convention for the Protection of
Human Rights and Fundamental Freedoms, which has been ratified by all the Member
States; for this reason, directives covering the supply of information society services
must ensure that this activity may be engaged in freely in the light of that Article,
subject only to the restrictions laid down in paragraph 2 of that Article and in
Article 46(1) of the Treaty; this Directive is not intended to affect national
fundamental rules and principles relating to freedom of expression ...
(42) The exemptions from liability established in this Directive cover only cases
where the activity of the information society service provider is limited to the
technical process of operating and giving access to a communication network over
which information made available by third parties is transmitted or temporarily stored,
for the sole purpose of making the transmission more efficient; this activity is of a
mere technical, automatic and passive nature, which implies that the information
society service provider has neither knowledge of nor control over the information
which is transmitted or stored.
(43) A service provider can benefit from the exemptions for “mere conduit” and for
“caching” when he is in no way involved with the information transmitted; this
requires among other things that he does not modify the information that he transmits;
this requirement does not cover manipulations of a technical nature which take place