Drafting Ideas for the Revision of Non-hosting Liability Exemptions in the EU

Posted: 3 Apr 2021

See all articles by Sebastian Felix Schwemer

Sebastian Felix Schwemer

University of Copenhagen, Centre for Information and Innovation Law (CIIR); University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

Tobias Mahler

University of Oslo - Norwegian Research Center for Computers and Law

Date Written: March 23, 2021

Abstract

The European Union is currently discussing a reform of its intermediary liability rules with its recently proposed Digital Services Act. The existing rules in the e-Commerce Directive (Directive 2000/31/EC) offer a safe harbour from liability for certain intermediary functions that are central to the functioning of the internet. A safe harbour for intermediaries is one of the regulatory cornerstones that help protect innovation, creativity and the free flow of information. At the same time, these rules are under pressure. This paper discusses a subset of ‘non-hosting’ intermediary functions. Some of these have traditionally been less visible in content-related regulatory debates. We look at selected examples of functions related to, for instance, the domain name system (DNS), content delivery networks (CDNs), cloud processing and live-streaming. The current liability exemption regime under the e-Commerce Directive focusses on transmission in, or access to, a communication network, as well as storage. However, significant grey areas arise both in relation to what we call the ‘auxiliary network intermediary’ function (as opposed to ‘direct network intermediary functions’, corresponding to ‘mere conduit’ functions), which does not transmit or provide access, and the ‘temporal provision and processing of information’, which is different from storage.

Suggested Citation

Schwemer, Sebastian Felix and Mahler, Tobias, Drafting Ideas for the Revision of Non-hosting Liability Exemptions in the EU (March 23, 2021). Available at SSRN: https://ssrn.com/abstract=3810963

Sebastian Felix Schwemer (Contact Author)

University of Copenhagen, Centre for Information and Innovation Law (CIIR) ( email )

Karen Blixens Plads 16
Copenhagen, 2300
Denmark

HOME PAGE: http://www.ciir.dk

University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

St. Olavsplass 5
Oslo, Oslo 0130
Norway

Tobias Mahler

University of Oslo - Norwegian Research Center for Computers and Law ( email )

St. Olavsplass 5
Oslo, Oslo 0130
Norway

HOME PAGE: http://folk.uio.no/tobiasm/

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