ISP and intermediary liability

The following IP practice note provides comprehensive and up to date legal information covering:

  • ISP and intermediary liability
  • Mere conduits
  • Regulation 17
  • Caching
  • Regulation 18
  • Hosting
  • Regulation 19
  • ISPs—dealing with infringements and take down requests
  • Injunctions against ISPs
  • Liability for illegal uploads by platform users
  • More...

ISP and intermediary liability

The EU E-Commerce Directive (Directive 2000/31/EC), which deals with certain legal aspects of information society services, in particular electronic commerce in the Internal Market, provides, in the EU, for liabilities that arise out of the functioning of networks in the digital age. It formed the basis for liabilities and defences of service providers, including internet service providers (ISPs) in the UK, giving them a defence against claims for damages, other pecuniary remedies and criminal sanctions for content transmitted over their networks in certain circumstances, largely where the ISP’s activities are automatic, intermediate and passive. Protection from liability does not prevent the granting of injunctions against ISPs.

It should be noted that the EU E-Commerce Directive is targeted towards general content liability and not just specific IP rights.

11 pm (GMT) on 31 December 2020 marked the end of the implementation period put in place to enable the UK to transition away from the EU’s laws and institutions. At this point in time (referred to in this document as ‘IP completion day’) there was an immediate and significant change in the UK’s legal regime. The draft Trade and Cooperation Agreement (TCA) agreed between the EU and the UK contains sections of interest to those dealing with ISP liabilities but does not fundamentally change the impact that the end of transition has had. TCA, Part Two, Title V: Intellectual

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