Q&As

To what extent does the E-Commerce Directive (Council Directive 2000/31/EC) apply to cloud service providers and what are the practical implications for providers?

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Produced in partnership with Craig Armstrong of Shoosmiths
Published on LexisPSL on 30/08/2017

The following TMT Q&A produced in partnership with Craig Armstrong of Shoosmiths provides comprehensive and up to date legal information covering:

  • To what extent does the E-Commerce Directive (Council Directive 2000/31/EC) apply to cloud service providers and what are the practical implications for providers?
  • Application to cloud service providers
  • Defences under the E-Commerce Directive

To what extent does the E-Commerce Directive (Council Directive 2000/31/EC) apply to cloud service providers and what are the practical implications for providers?

Application to cloud service providers

The E-Commerce Directive applies to any ‘information society service’ which is defined as ‘any service normally provided for remuneration at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, at the individual request of a recipient of the service’.

This definition is broad enough to capture cloud services, albeit cloud services were in their relative infancy when the E-Commerce Directive was drafted. It should be borne in mind that the E-Commerce Directive pre-dated the launch of Amazon Web Services (launched in 2006) and Microsoft’s Azure cloud service (announced in 2008 and not launched until 2010). Therefore it is unsurprising that, 17 years on, there have been calls for the E-Commerce Directive to be updated including the clarification that cloud services, for which storage of data may only be a component, fall within the scope of the E-Commerce Directive. See, for example, para 5 of BEUC’s position paper, EU Cloud Computing Strategy.

An EU Study on the liability of online intermediaries recognises the development of case law within a number of EU Member States regarding the ‘mere hosting’ defence (referred to below) which seeks to draw a distinction between services which are primarily

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