03/02/2020
CURIA - Documents
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.
This Directive does not affect the possibility for Member States of requiring service providers, who host
information provided by recipients of their service, to apply duties of care, which can reasonably be expected from
them and which are specified by national law, in order to detect and prevent certain types of illegal activities.’
Article 14 of Directive 2000/31, headed ‘Hosting’, states:
‘(1)
Where an information society service is provided that consists of the storage of information provided by a
recipient of the service, Member States shall ensure that the service provider is not liable for the information stored
at the request of a recipient of the service, on condition that:
the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages,
is not aware of facts or circumstances from which the illegal activity or information is apparent; or
the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to
the information.
(2)
Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of
the provider.
(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, nor does it affect
the possibility for Member States of establishing procedures governing the removal or disabling of access to
information.’
Under Article 15 of Directive 2000/31:
‘(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 illegal activity.
(2)
Member States may establish obligations for information society service providers promptly to inform the
competent public authorities of alleged illegal 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
Under recitals 16 and 59 in the preamble to Directive 2001/29:
… 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.
…
n 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.’
Under Article 3(1) of Directive 2001/29:
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the
public of their works, by wire or wireless means, including the making available to the public of their works in such
a way that members of the public may access them from a place and at a time individually chosen by them.’
Article 8 of that directive provides:
‘(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 is worded as follows:
‘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.’
Under Article 2(3) of Directive 2004/48:
‘This Directive shall not affect:
the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC … or
Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular;
Article 3 of Directive 2004/48 states:
‘(1)
Member States shall provide for the measures, procedures and remedies necessary to ensure the
enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies
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