On Domain Registries and Unlawful Website Content: Shift in Intermediaries’ Role in Light of Unlawful Content or just another Brick in the Wall?

Abstract

The link of lawful domain names to unlawful content is a phenomenon that has not been very topical until recently. Traditionally, domain registries have been off the radar of content-related debates. Enforcement efforts, public discourse and academic research have focused on other intermediaries such as Internet access service providers, hosting platforms, and websites that link to content.

This article shows that in recent years, however, that the (secondary) liability of domain registries and registrars, and more specifically country code top-level domain (ccTLD) registries for website content, has been tested in several EU Member States. The article investigates tendencies in the national lower-court jurisprudence and explores to what extent the liability exemption regime of the E-Commerce Directive applies to domain registries. The analysis concludes that whereas domain registries can be read under the exemptions in a teleological interpretation, more clarity is desirable.

Note: Author's Original Version. Please note original of publication: International Journal of Law and Information Technology, Volume 26, Issue 4, 1 December 2018, Pages 273–293, DOI: 10.1093/ijlit/eay012.

Keywords: DNS governance, ccTLD regulation, liability, content regulation, governance-by- infrastructure, E-Commerce Directive