p2b regulation

Online Platform Case Law

Last updated 28 May 2020

Court of Justice of the European Union

CJEU 9 July 2020, C-264/19, ECLI:EU:C:2020:542 (Constantin Film Verleih/YouTube)

Keywords: Copyright Infringement, Piracy, Right to Information

Matter: Constantin Film Verleih is a German film distributor. It held the exclusive rights to two movies. In the course of 2013 and 2014, these works were uploaded to YouTube without permission and, as a consequence, viewed tens of thousands of times. Constantin Film Verleih demanded that YouTube and its parent company Google provide information relating the users who had uploaded those movies. After a few appeals were ignored, Constantin Film Verleih initiated court proceedings claiming that YouTube and Google are required to provide them the requested telephone numbers, email addresses and IP addresses of each of the involved users.

Judgement: The answer depends on the interpretation of article 8, paragraph 2, under a) of the Enforcement Directive (Directive 2004/48), in particular, the answer to the question whether these types of information fall under the scope of that provision. The European Court follows the conclusion of the Advocate-General and states that the term “address” does not include the email address and the phone number of the user and the IP address that is used to upload the files. The Court therefore takes into account the usual meaning of the term “address”, the preparatory work concerning the Directive, the context in which the term is being used and the general objective of the Directive. It is concluded that the rightholder may require the operator to provide the postal address of the involved users, but not his or her email address, IP address or telephone number.

Link: Click here for the full text of the judgment.

CJEU 2 April 2020, C-567/18, ECLI:EU:C:2020:267 (Coty/Amazon)

Keywords: Use of Trademarks, Trademark Infringement, Liability

Matter:  Coty distributes luxury cosmetics and is licensee of the European Union trademark “DAVIDOFF”. Via Amazon’s electronic marketplace the perfume “Davidoff Hot Water”, of which the distribution rights had not been exhausted, are sold by a third seller. Since Amazon stored the perfume for the seller, it was summoned to hand it over. Subsequently Amazon send thirty copies, eleven of which came from other sellers. Amazon however could not provide Coty with identifying data of these other sellers. As as result Amazon was summoned in court for trademark infringement and was held liable for the damages occurred.

Judgement: The court found that there was no “use” of a trademark by Amazon, within the meaning of Article 9(2) and (3)(b) of the European Union Trade Mark Regulation 2017. A person who stores infringing goods for a third party without having the knowledge of the infringement and without the storage having been carried out with the intention of offering or marketing the goods himself, does not ‘use’ the trademark. This may be different if the person storing the goods has stored these for his own account or if he is not able to identify for whom he holds the infringing goods. Other than the A-G, the CJEU followed a narrow approach which did not focus on Amazon and its integral services within distribution process, but merely as different entities which provide different services.

Link: Click here for the full text of the judgement.

CJEU 19 December 2019, C-390/18, ECLI:EU:C:2019:1112 (Airbnb)

Keywords: Intermediary, Information Society Service

Matter: The case concerned a dispute between AHTOP (Association for professional tourism and accommodation) and Airbnb Ireland. Airbnb Ireland offers an electronic platform, which in return for a commission, enables professional hosts and private individuals to offer and book accommodation. In addition, Airbnb Ireland offers the “hosts” ancillary services, such as a format for setting out the content of their offer, civil liability insurance, a tool for estimating their rental price or payment services for the provision of those services. The AHTOP stated that Airbnb therefore acted as an estate agent, without holding a professional licence. According to the AHTOP, this violated the national act in France which applies to the activities of real estate professionals. Airbnb however claimed that it was precluded from this specific legislation on the basis of the E-commerce Directive.

Judgement: The court found that an intermediation service of the platform, which is mainly intended to connect (for a remuneration) potential guests with professional or non-professional hosts offering accommodation services, although also providing a certain number of services in addition to that intermediation service, must nevertheless be classified as an ‘information society service’ under the E-commerce Directive. Consequently, the “country of origin” principle pursuant to the E-Commerce Directive precludes the application of French access restrictions for real estate agents.

Link: Click here for the full text of the judgement.

CJEU 19 December 2019, C-263/18, ECLI:EU:C:2019:1111 (NUV/Tom Kabinet)

Keywords: Copyright Infringement, Distribution Rights, Exhaustion, Communication to the Public

Matter: The online platform Tom Kabinet allowed its consumers to upload and sell their purchased e-books. According to the Dutch publisher bond NUV, this is only permitted with the consent of the rightholder, since the download constitutes “communication to the public” as under article 3(1) Copyright Directive. Tom Kabinet disagreed and stated that, from the moment the first sell of the e-book by the rightholder, the distribution rights are exhausted and customers are allowed to resell these e-books. The central question therefore is whether digital files – in particular e-books – are susceptible to ‘exhaustion’ in the same way as physical products and also software.

Judgement: The court ruled that the sale of second-hand e-books through a website constituted a communication to the public under article 3(1) Copyright Directive. This act is subject to authorisation by the author. The offering of e-books through Tom Kabinet, by means of a download for permanent use, is furthermore not covered by the right of ‘distribution to the public’ under Article 4(1) of the Copyright Directive. Other than Software, digital works as e-books, music and films are therefore not subjected to exhaustion.

Link: Click here for the full text of the judgement.

CJEU 3 October 2019, C-18/18, ECLI:EU:C:2019:821 (Glawischnig-Piesczek/Facebook)

Key Words: Illegal Content, Internet Service Provider, Monitoring, Injunction

Matter:  Eva Glawischnig-Piesczek is member of the National Council in Austria, chair of the parliamentary party ‘The Greens’ and federal spokesperson for that party. A Facebook user posted comments that were harmful to her reputation. Glawischnig-Piesczek subsequently ordered Facebook to remove the specific comment, as well as other allegations which were identical and/or of an equivalent content. Facebook however refused to. The specific post contained an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’. The post generated a ‘thumbnail’ of the original site, containing the title and a brief summary of the article and a photograph of Glawischnig-Piesczek. The same user also published, a comment which the Austrian courts had already found harmful to the reputation of  Glawischnig-Piesczek and which insulted and defamed her.  

Judgement: The CJEU considered that the E-commerce Directive seeks to strike a balance between the different interests at stake. The prohibition of a general monitoring obligation for platforms (article 15 of the E-Commerce Directive) does however not preclude national courts from ordering platforms like Facebook to take down illegal content, as well as any (future) content which is ‘identical’ or ‘equivalent’ to content which has previously been declared illegal. The removal or injunction of this content shall furthermore also be applicable worldwide. By using the broad terms ‘identical’ and ‘equivalent’ the court leaves room for discussion concerning the scope thereof.

Link: Click here for the full text of the judgement.

CJEU 20 December 2017, C-434/15, ECLI:EU:C:2017:981 (Uber)

Keywords: Intermediary, Information Society Service

Matter: a professional taxi drivers’ association from Spain started proceedings against Uber. Unlike professional taxi drivers, nor Uber nor its non-professional drivers have the licences and authorisations required under the regulation on taxi services in the metropolitan area of Barcelona. The Spanish court considered that it should be determined whether the services provided by Uber are to be regarded as transport services, information society services or a combination of both. The answer whether or not prior administrative authorisation may be required depends on the classification of Uber.

Judgement: The Court ruled that Uber did not qualify as an ‘information society service’. The intermediation service from Uber must be regarded as an integral part of an overall service whose main component is a transport service and therefore must be qualified as ‘a service in the field of transport’. Consequently Uber is excluded from the scope of the freedom to provide services in general as well as the EU Services Directive and E-commerce Directive. As a result Uber shall have to obey the national legislation in Spain with regard to the possession of a license for its drivers.

Link: Click here for the full text of the judgement.

CJEU 6 December 2017, C-230/16, ECLI:EU:C:2017:941 (Coty/Parfümerie Akzente)

Keywords: Competition Law, Contractual clauses, Luxury Goods

Matter: Coty Germany, a supplier of luxury perfumes, had a conflict with one of its authorised distributors Parfümerie Akzente. The contract between the parties prohibited distributors as Parfümerie Akzente from selling the goods online via third-party platforms. Despite this contractual clause, Parfümerie Akzente did sell the goods from Coty via amazon.de. As it is unsure whether a clause as such is lawful under EU competition law, the Higher Regional Court from Germany requested the Court of Justice to rule on the matter.

Judgement: The CJEU ruled that EU law does not preclude a contractual clause, which prohibits authorised distributors of a selective distribution network of luxury goods, to sell the goods concerned via third-party platforms for internet sales, if:

i)  that clause has the objective of preserving the luxury image of the goods concerned;

ii) it is laid down uniformly and not applied in a discriminatory fashion; and

iii) it is proportionate in the light of the objective pursued.

The CJEU seemed to consider that the clause in question met those criteria. With regard to the criteria under iii) the Court noted that Coty could not effectively force platforms to comply with the quality criteria, imposed on its authorised distributors, since a contractual relationship between Coty and the third-party party platform does not exist.

Link: Click here for the full text of the judgement.

CJEU 14 June 2017, C-610/15, ECLI:EU:C:2017:456 (Brein/Ziggo XS4ALL)

Keywords: Copyright Infringement, Communication to the Public, Anti-piracy, Injunction

Matter: The anti-piracy organisation Stichting Brein, applied for an injunction against internet access providers Ziggo and XS4ALL. Stichting Brein ordered the two access providers to block access for it users to the file sharing platform The Pirate Bay. Whether the injunction in question is attributable depends on the interpretation of Article 8(3) of the Copyright Directive, which states that Member States “shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”.

Judgement: The concept of ‘communication to the public’, within the meaning of Article 3(1) of the Copyright Directive must be interpreted as covering the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network. By making the works available to its users, the Pirate Bay therefore infringes the copyrights of the rightholder who did nog give its permission. This means an injunction, as ordered by Stichting Brein, may force access providers to block access to certain webpages.

Link: Click here for the full text of the judgement.

CJEU 9 November 2016, C-149/15, ECLI:EU:C:2016:840 (Wathelet)

Keywords: Consumer Law, Liability, Intermediary

Matter: a consumer bought a second hand car from a car dealer, after which it broke down. After reparation of the vehicle by the car dealer the consumer was issued with an invoice relating to the costs of repair. The consumer believed the costs of reparation should be borne by the car dealer, as the seller of the vehicle. The Car Dealer argued that it is not responsible for the costs since it is not the seller of the car, but rather acted in the capacity of intermediary on behalf of another private individual.  

Judgement: the concept of “seller” within the meaning of Article 1(2)(c) Consumer Sales Directive can be interpreted as covering a trader who acts on behalf of a private individual where, from the point of view of the consumer, he presents himself as the seller of consumer goods under a contract in the course of his trade, business or profession. In this situation the consumer may invoke its consumer rights against the intermediary, which failed to properly inform the consumer concerning his role as intermediary.

Link: Click here for the full text of the judgement.

CJEU 6 October 2015,  C-362/14, ECLI:EU:C:2015:650 (Facebook/Schrems)

Keywords: Privacy, Data Protection, Transfer of Personal Data, Data Storage

Matter: By registering an account of Facebook, the Facebook users agree that the social media platform may transfer and store their personal data on servers in the USA. Schrems filed a complaint with regard to this transfer of personal data outside the EU with the Irish supervisory authority for data protection. According to Schrems, current US data protection law and practice do not provide sufficient protection against surveillance of the data transferred to that country by government authorities. In that regard, he refers to Edward Snowden’s revelations in 2013 about the activities of the U.S. intelligence agencies and in particular the National Security Agency. The Irish data protection authority rejected Schrems’ complaint with reference to the Safe Harbour decision from the European Commission in 2000. This decision states that the US provides an adequate level of protection for the personal data transferred under its Safe Harbour principles. The Data Protection Directive provides that the transfer of personal data to a third country may only take place if that third country ensures an adequate level of protection of the data. The directive also provides that the Commission may find that a third country ensures an adequate level of protection by reason of its domestic law or its international commitments

Judgement: The Court declares the Safe Harbour Decision is invalid. The Commission failed to investigate if the United States in fact ensures, by reason of its domestic law or its international commitments, a level of protection of fundamental rights essentially equivalent to that guaranteed within the EU under the Data Protection Directive. The Court noticed that public authorities in the US themselves are not subject to the Safe Harbour principles. Moreover national security, public interest and law enforcement requirements of the United States prevail over the Safe Harbour scheme, so that United States undertakings are bound to disregard, without limitation, the protective rules laid down by that scheme where they conflict with such requirements. By declaring the Safe Harbour Decision for the US invalid, an important legal basis for transmission of personal data to the US disappeared.

Link: Click here for the full text of the judgement.

CJEU 13 May 2014, C-131/12, ECLI:EU:C:2014:317 (Google Spain/Costeja)

Keywords: Privacy, Personal Data, Right to be Forgotten, Freedom of Speech, Search Engines

Matter: Newspaper La Vanguardia Ediciones published two announcements of a public real estate auction in 1998 to recover social security debts. In these publications Mario Costeja González was referred to as the owner of the property. The announcements were published online. The search ‘Mario Costeja González’ in Google showed links to these publications of La Vanguardia. González asked the publisher to remove the information, because his financial problems were of the past and the information was no longer relevant. The publisher refused to remove the information from the website. González also approached Google’s office in Spain with the request to remove the search results. Since Google also refused González filed a complaint at the Spanish supervisory authority, which was lodged insofar it concerns Google.

Judgement: A search engine like Google, ‘retrieves’, ‘records’ and ‘organises’ the personal data, which it then ‘stores’ on its servers and ‘discloses’ to its users. The court considers that these actions classify as ‘processing’ and the search engine Google furthermore qualifies as ‘controller’, as under the Privacy Directive. After all Google is responsible for the processing of personal data which appear on web pages published by third parties. The Court also noticed that the data subject has a right to request the removal of certain web links (Right to be forgotten), even if the data initially was lawfully processed or was accurate. In course of time, this data my still become incompatible with the directive where the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.

Link: Click here for the full text of the judgement.

CJEU 27 March 2014, C-314/12 ECLI:EU:C:2014:192 (UPC TeleKabel Wien)

Keywords: Copyright Infringement, ISP’s, balance of interests

Matter: On the website www.kino.to internet users could download or stream copyright protected films of which he rightholders had not granted permission. In order to end the copyright infringements on the website, the rightholders started proceedings in front of  the Austrian court with the request to order UPC Telekabel Wien, a major Austrian Internet service provider, to block access to the website. During proceedings the question raised whether an Internet Service Provider can be prohibited from providing access to a particular website, without specifying concrete measures to be taken by the provider and, in addition, if  the Internet Service Provider can avoid penalty payments by demonstrating that it has taken all reasonable measures.

Judgement: The CJEU states that an Internet Service Provider may be prohibited from giving its customers access to a website, without specifying the specific measures to be taken, under the conditions set out therein. For an injunction as such it is however necessary to strike a balance, primarily, between copyrights and related rights and on the other side the freedom to conduct a business, the freedom of information of internet users. The  adoption of an injunction such as that at issue in the main proceedings restricts that freedom of business, but does not seem to infringe the very substance of the freedom of an internet service provider. The injunction leaves the ISP to determine the specific measures to be taken and allows the ISP to avoid liability by proving that he has taken all reasonable measures.

Link: Click here for the full text of the judgement.

CJEU 24 November 2011, C-70/10, ECLI:EU:C:2011:771 (Scarlet/Sabam)

Keywords: Copyright Infringement, General Filter Obligation, Injunction

Matter: The Belgium CMO Sabam discovered in 2004 that internet users from Scarlet were downloading copyright protected works in SABAM’s catalogue from the internet, without having the authorisation and without paying royalties. The downloads took place by means of peer-to-peer networks. Scarlet, in its capacity as an internet service provider, was ordered by SABAM to bring those copyright infringements to an end by making it impossible for its customers to send or receive in any way electronic files containing a musical work in SABAM’s repertoire by means of peer-to-peer software. Scarlet appealed claiming that the injunction failed to comply with EU law because it imposed on Scarlet a general monitor obligation, which is in violation of article 15 of the E-commerce Directive. The Belgium court of appeal asks the CJEU whether EU law permits Member States to authorise a national court to order an internet service provider to install, on a general basis, as a preventive measure, exclusively at its expense and for an unlimited period, a system for filtering all electronic communications in order to identify illegal file downloads.

Judgement: The CJEU ruled that EU law precludes the assignment of an injunction by a national court which requires an internet service provider to install a filtering system by means of preventing the illegal downloading of files. An injunctions as such does not comply with the prohibition on imposing a general monitoring obligation on such internet provider, or with the requirement to strike a fair balance between the right to intellectual property and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.

Link: Click here for the full text of the judgement.

CJEU 12 July 2011, C‑324/09, ECLI:EU:C:2011:474 (L’Oréal/eBay)

Keywords: Use of Trademarks, Trademark Infringement, Liability, Safe Harbour

Matter: L’Oréal has initiated proceedings in the UK against the marketplace eBay and a third seller who offered L’Oréal products for sale on eBay, without L’Oréal’s’ consent. eBay also used the L’Oréal trademark as keyword in Google for its advertisement. According to L’Oréal, eBay infringes its trademark rights, or at least it is responsible for the trademark infringements committed by its third seller parties.

Judgement:

Trademark

The provision of test samples and demonstration packaging by the trade mark proprietor to distributors,  is considered “putting them on the market” within the meaning of the Trade Mark Directive and the Community Trade Mark Regulation. The trademark proprietor may oppose the marketing of products from which the reseller has removed the outer packaging where this (i) lacks essential information (such as the identity of the manufacturer) or (ii) the trade mark proprietor can prove that the removal of the packaging is detrimental to the image of the product and thus to the reputation of the trade mark.

The court furthermore noticed that advertising in Google with the trademarks of the proprietor, referring to offers for sale of L’Oréal products is not “use” of the trade mark by the online platform, within the meaning of Article 5(1)(a) of the Trademark Directive in conjunction with Article 9(1)(a) of the Community Trade Mark Regulation, insofar as the advertisements on Google advertise the proprietor’s own electronic marketplace. It does however constitute “use” by the platform itself insofar as the platform advertises the specific offering for sale of the trademark’s products by third party sellers on the electronic marketplace. 

Liability

eBay cannot invoke the exception of liability for information society services, within the meaning of Article 14 of the E-commerce Directive, since it plays an active role which automatically gives the platform knowledge of or control over the data stored. According to the Court, service providers such as eBay can therefore not rely on this safe-harbour exemption. eBay, as operator of the electronic marketplace, provides assistance to its sellers such as the promotion of sales offers and the optimisation of the way in which they are displayed. Insofar as operator of the online marketplace has not played an active role, it none the less cannot rely on the safe-harbour if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) E-commerce Directive.

Link: Click here for the full text of the judgement.

CJEU 23 March 2010, C-236/08 – C-238/08, ECLI:EU:C:2010:159 (Google France/Louis Vuitton)

Keywords: Trademark Infringement, AdWords, Search Engines

Matter: Google offers a paid referencing service called ‘AdWords’. This service enables third parties to ‘claim’ single or multiple keywords, in order to obtain top ranking in the search engine. Under the heading ‘sponsored links’ an advertising link appears when an internet user searches on the particular keyword. Trademark holder Louis Vuitton became aware that the entry of its trademark as keyword displayed  ‘sponsored links’ to websites offering imitation versions of Louis Vuitton’s products and to sites of competitors. Several proceedings were brought to court against Google for declarations that it had infringed their trademarks.

Judgement: The court ruled that a service provider, who creates the technical conditions necessary for the use of a sign and is paid for that service, does not necessary itself uses the trademark. Allowing advertisers to purchase keywords corresponding to their competitors’ trademarks does not constitute trademark infringement by Google, since it does not ‘use’ the trademark itself.

Link: Click here for the full text of the judgement.