16
DELFI AS v. ESTONIA JUDGMENT
(c) “established service provider”: a service provider who effectively pursues an
economic activity using a fixed establishment for an indefinite period. The presence
and use of the technical means and technologies required to provide the service do
not, in themselves, constitute an establishment of the provider ...”
Section 4: Liability of intermediary service providers
Article 12 – “Mere conduit”
“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.
2. The acts of transmission and of provision of access referred to in paragraph 1
include the automatic, intermediate and transient storage of the information
transmitted in so far as this takes place for the sole purpose of carrying out the
transmission in the communication network, and provided that the information is not
stored for any period longer than is reasonably necessary for 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 13 – “Caching”
“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, Member States shall ensure that the service provider is not liable for the
automatic, intermediate and temporary storage of that information, performed for the
sole purpose of making more efficient the information’s onward transmission to other
recipients of the service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information,
specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely
recognised and used by industry, to obtain data on the use of the information; and