1709 Blog: for all the copyright community

Monday, 22 July 2013

Papasavvas heads for CJEU

The attention of this member of the 1709 Blog team has been drawn to another set of questions that a national court has referred to the Court of Justice of the European Union for a preliminary ruling -- a further sign of the increasing uncertainty at national level as to what are the legal principles that national courts are to apply consistently across the 28 Member States when dealing with old problems which roost in the lofty heights of the so-called new technologies [which are not really so new any more]. This reference is Case C-291/13 PAPASAVVAS E.A, a reference from Cyprus. This case was swiftly posted here on the EU Law Radar weblog and, as readers can see, it's a reference relating to Directive 2000/31 -- the E-Commerce Directive.

The questions referred to the Court of Justice are as follows:
1. Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31?

2. If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?

3. Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?

4. Do the definitions of 'information society service' and 'service provider' in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34 [laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services], as amended by Directive 98/48, cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?

5. Bearing in mind the definition of 'information service provider', laid down in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34, as amended by Directive 98/48, could the following, or any of them, be regarded as a 'mere conduit' or 'caching' or 'hosting' for the purposes of Articles 12, 13 and 14 of Directive 2000/31:

[or 5]

(a) a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

(b) an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper's staff and/or freelance journalists; 
(c) a website which provides (a) or (b) above for a subscription?
Substitute 'copyright infringement' for 'defamation' and you have an interesting topic or two for discussion. If you want to tell the UK government what you think, and whether it should seek to make representations to the Court of Justice, just email policy@ipo.gov.uk by 25 July 2013.


Darius Whelan said...

Thanks for a very interesting post.

I think Directive 2000/31 is the E-Commerce Directive not the InfoSoc Directive.
Your link is to Directive 2001/29.

Jeremy said...

Thanks, Darius. Duly corrected. Can't believe I wrote that!

Huťko said...

For those interested, I posted some comments on the reference here http://www.husovec.eu/2013/07/new-preliminary-reference-on-safe.html