03/02/2020 CURIA - Documents ‘In addition to other information requirements established by [European Union] law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions: … the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable; …’ Chapter II of Directive 2000/31 includes a section (Section 4) entitled ‘Liability of intermediary service providers’, which comprises Articles 12 to 15. Article 14 of Directive 2000/31, entitled ‘Hosting’, provides: ‘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’. Article 15 of Directive 2000/31, entitled ‘No general obligation to monitor’, provides: ‘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. …’ Chapter III of Directive 2000/31 includes, in particular, Article 18, entitled ‘Court actions’, which provides: ‘Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. …’ C – Directive 2004/48 (‘Directive on the enforcement of intellectual property rights’) Recitals 1 to 3, 23, 24 and 32 in the preamble to Directive 2004/48 state: The achievement of the internal market entails eliminating restrictions on freedom of movement and distortions of competition, while creating an environment conducive to innovation and investment. In this context, the protection of intellectual property is an essential element for the success of the internal market ... . … At the same time, it should not hamper freedom of expression, the free movement of information, or the protection of personal data, including on the internet. However, without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied effectively in the [European Union]. … … [r]ightholders 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/EC [of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10)]. Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. Depending on the particular case, and if justified by the circumstances, the measures, procedures and remedies to be provided for should include prohibitory measures aimed at preventing further infringements of intellectual property rights. ... This Directive respects the fundamental rights … recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of that Charter.’ Article 2 of Directive 2004/48, which defines the scope of the directive, provides: ‘1. Without prejudice to the means which are or may be provided for in [European Union] or national legislation, in so far as those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this Directive shall apply … to any infringement of intellectual property rights as provided for by [European Union] law and/or by the national law of the Member State concerned. ... 3. This Directive shall not affect: ... Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular; ...’. Chapter II of Directive 2004/48, entitled ‘Measures, procedures and remedies’, contains six sections, the first of which, entitled ‘General provisions’, includes Article 3, which provides: curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 3/15