Intermediaries’ Liability
‘Mere conduit’
Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the service provider shall not be liable for the information transmitted or accessed, on condition that the provider:
- does not initiate the transmission;
- does not select the receiver of the transmission; and
- does not select or modify the information contained in the transmission.
The acts of transmission and of provision of access referred to in paragraph 1 shall include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
This does not affect the possibility for a judicial or administrative authority, in accordance with a Member State’s legal system, to require the service provider to terminate or prevent an infringement.
‘Caching’
Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient or more secure the information’s onward transmission to other recipients of the service upon their request, on condition that the provider:
- does not modify the information;
- complies with conditions on access to the information;
- complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
- does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a judicial or an administrative authority has ordered such removal or disablement.
This does not affect the possibility for a judicial or administrative authority, in accordance with a Member State’s legal system, to require the service provider to terminate or prevent an infringement.
Hosting
Where an information society service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that the provider:
- does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or
- upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal content.
This does not apply where the recipient of the service is acting under the authority or the control of the provider.
This does not apply with respect to the liability under consumer protection law of online platforms that allow consumers to conclude distance contracts with traders, where such an online platform presents the specific item of information or otherwise enables the specific transaction at issue in a way that would lead an average consumer to believe that the information, or the product or service that is the object of the transaction, is provided either by the online platform itself or by a recipient of the service who is acting under its authority or control.
The above provisions do not affect the possibility for a judicial or administrative authority, in accordance with a Member State’s legal system, to require the service provider to terminate or prevent an infringement.
Voluntary own-initiative investigations and legal compliance
Providers of intermediary services shall not be deemed ineligible for the exemptions from liability referred to above solely because they, in good faith and in a diligent manner, carry out voluntary own-initiative investigations into, or take other measures aimed at detecting, identifying and removing, or disabling access to, illegal content, or take the necessary measures to comply with the requirements of Union law and national law in compliance with Union law, including the requirements set out in this Regulation.
No general monitoring or active fact-finding obligations
No general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers.
Orders to act against illegal content
Upon the receipt of an order to act against one or more specific items of illegal content, issued by the relevant national judicial or administrative authorities, on the basis of the applicable Union law or national law in compliance with Union law, providers of intermediary services shall inform the authority issuing the order, or any other authority specified in the order, of any effect given to the order without undue delay, specifying if and when effect was given to the order.
EU Member States shall ensure that when an order referred to in paragraph 1 is transmitted to the provider, it meets at least the following conditions:
- that order contains the following elements:
- a reference to the legal basis under Union or national law for the order;
- a statement of reasons explaining why the information is illegal content, by reference to one or more specific provisions of Union law or national law in compliance with Union law;
- information identifying the issuing authority;
- clear information enabling the provider of intermediary services to identify and locate the illegal content concerned, such as one or more exact URL and, where necessary, additional information;
- information about redress mechanisms available to the provider of intermediary services and to the recipient of the service who provided the content;
- where applicable, information about which authority is to receive the information about the effect given to the orders;
- the territorial scope of that order, on the basis of the applicable rules of Union and national law, including the Charter, and, where relevant, general principles of international law, is limited to what is strictly necessary to achieve its objective;
- that order is transmitted in one of the languages declared by the provider of intermediary services or in another official language of the Member States, agreed between the authority issuing the order and that provider, and is sent to the electronic point of contact designated by that provider, ; where the order is not drafted in the language declared by the provider of intermediary services or in another bilaterally agreed language, the order may be transmitted in the language of the authority issuing the order, provided that it is accompanied by a translation into such declared or bilaterally agreed language of at least the elements set out in the first two points of this paragraph.
The authority issuing the order or, where applicable, the authority specified therein, shall transmit it, along with any information received from the provider of intermediary services concerning the effect given to that order to the Digital Services Coordinator from the Member State of the issuing authority.
After receiving the order from the judicial or administrative authority, the Digital Services Coordinator of the Member State concerned shall, without undue delay, transmit a copy of the order referred to to all other Digital Services Coordinators through the system established by the Regulation.
At the latest when effect is given to the order or, where applicable, at the time provided by the issuing authority in its order, providers of intermediary services shall inform the recipient of the service concerned of the order received and to the effect given to it. Such information provided to the recipient of the service shall include a statement of reasons, the possibilities for redress that exist, and a description of the territorial scope of the order.
The conditions and requirements laid down above are without prejudice to national civil and criminal procedural law.
Orders to provide information
Upon receipt of an order to provide specific information about one or more specific individual recipients of the service, issued by the relevant national judicial or administrative authorities on the basis of the applicable Union law or national law in compliance with Union law, providers of intermediary services shall, without undue delay inform the authority issuing the order, or any other authority specified in the order, of its receipt and of the effect given to the order, specifying if and when effect was given to the order.
Member States shall ensure that when an order referred to in paragraph 1 is transmitted to the provider, it meets at least the following conditions:
- that order contains the following elements:
- a reference to the legal basis under Union or national law for the order;
- information identifying the issuing authority;
- clear information enabling the provider of intermediary services to identify the specific recipient or recipients on whom information is sought, such as one or more account names or unique identifiers;
- a statement of reasons explaining the objective for which the information is required and why the requirement to provide the information is necessary and proportionate to determine compliance by the recipients of the intermediary services with applicable Union law or national law in compliance with Union law, unless such a statement cannot be provided for reasons related to the prevention, investigation, detection and prosecution of criminal offences;
- information about redress mechanisms available to the provider and to the recipients of the service concerned;
- where applicable, information about which authority is to receive the information about the effect given to the orders;
- that order only requires the provider to provide information already collected for the purposes of providing the service and which lies within its control;
- that order is transmitted in one of the languages declared by the provider of intermediary services or in another official language of the Member States, agreed between the authority issuing the order and the provider, and is sent to the electronic point of contact designated by that provider, where the order is not drafted in the language declared by the provider of intermediary services or in another bilaterally agreed language, the order may be transmitted in the language of the authority issuing the order, provided that it is accompanied by a translation into such declared or bilaterally agreed language of at least the elements set out in points (a) and (b) of this paragraph.
The authority issuing the order or, where applicable, the authority specified therein, shall transmit it, along with any information received from the provider of intermediary services concerning the effect given to that order to the Digital Services Coordinator from the Member State of the issuing authority.
After receiving the order from the judicial or administrative authority, the Digital Services Coordinator of the Member State concerned shall, without undue delay, transmit a copy of the order referred to in paragraph 1 of this Article to all Digital Services Coordinators through the system established in accordance with the Regulation.
At the latest when effect is given to the order, or, where applicable, at the time provided by the issuing authority in its order, providers of intermediary services shall inform the recipient of the service concerned of the order received and the effect given to it. Such information provided to the recipient of the service shall include a statement of reasons and the possibilities for redress that exist.
The conditions and requirements laid down in this Article shall be without prejudice to national civil and criminal procedural law.