Liability Exemptions of Non-Hosting Intermediaries: Sideshow in the Digital Services Act?

(8) Oslo Law Review, pp. 4–29 (2021), https://doi.org/10.18261/ISSN.2387-3299-2021-01-01

26 Pages Posted: 19 Jul 2022

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

Håkon Styri

Government of Norway

Date Written: May 18, 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 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.

Keywords: Intermediary liability, self-regulation, content regulation, Digital Services Act, e-Commerce Directive, content delivery networks, domain name system

Suggested Citation

Schwemer, Sebastian Felix and Mahler, Tobias and Styri, Håkon, Liability Exemptions of Non-Hosting Intermediaries: Sideshow in the Digital Services Act? (May 18, 2021). (8) Oslo Law Review, pp. 4–29 (2021), https://doi.org/10.18261/ISSN.2387-3299-2021-01-01, Available at SSRN: https://ssrn.com/abstract=4156047

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://jura.ku.dk/schwemer

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

Karl Johans gt. 47
Domus Academica
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/

Håkon Styri

Government of Norway ( email )

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