Online marketplace operators : extent of liability and remedial measures under EU and national law

Abstract

The objective of this study is to consider the aspect of liability and business implications of a specific type of intermediary, the online marketplace operator (such as e-commerce sites eBay and Amazon) and the extent of responsibility towards the intellectual property right owners in the case of a breach of their intellectual property rights (trademarks and copyright) by the users of the platform. The infringing material originates from third party users (merchants) and placed on the online platform for the ultimate benefit of the consumer. The role of the online marketplace operator varies greatly and may oscillate from entirely passive middleman to a more facilitative, proactive advertising and regulatory role which may have repercussions on the liability they may incur towards intellectual property owners. The study will discuss the operator’s liability, in particular, under which circumstances they may become liable for breaches of intellectual property rights on their platform. In recent decisions, both the CJEU and the national courts applied differing standards in addressing the scope of liability of online operators or intermediaries and have handed down different decisions on the culpability of the intermediary for third party wrongdoing, though there are now some emerging trends. The study will also discuss the emerging trends which have been shaped principally by the CJEU in decisions following referrals, by EU national courts, of several issues relating to EU Trademark law and the ECD. The CJEU only interprets the Law when giving a ruling on a preliminary reference and the national courts’ role is to apply the decision to the facts of the case. The CJEU decision in L'Oréal v eBay, for instance, is certainly a landmark decision in the area of intermediary liability. It has defined the boundaries of intermediary liability which is still to be interpreted at national court level. Aside from liability, an interesting perspective to the argument is the nature of the remedies and remedial measures which are available against the online market place operator, whether the existing remedies imposed on the e-commerce platforms until recently are effective and achieve the desired results. Is the notice and takedown procedure effective in combatting infringement ? What constitutes an effective notice to online marketplace operators and how should they deal with these notifications ? Is an effective EU harmonised procedure a possibility in this respect and how can this be achieved ? The possibilities for injunctive relief permissible under the ECD will also be explored and the lack of legislative harmonisation in this area will also be discussed in an attempt to establish how and when may the national courts order an injunction and whether a streamlined solution is available, rather than relying on the Member States’ divergent legal systems.