Considering the use of keywords as a trigger for contributory liability of an hosting provider that operates an online marketplace. The ECJ found that an hosting provider cannot benefit from the E-Commerce Directive safe harbours
(1) if it has played an active role in relation to the sale activities of the direct infringer, or
(2) if it has constructive knowledge of unlawful sales carried out throughout its services.
(3) The Court clarified that "awareness" of illegal content can in particular be obtained by a notice that is "sufficiently detailed and adequately substantiated". A hosting service provider may thus have to act (by removing or disabling access to content) following the receipt of a notice. A notice may concern any type of illegal content.
(4) The ECJ interpreted Article 11 of the Enforcement Directive as meaning that an ISP may be ordered “to take measures which contribute, not only to bringing to an end infringements of those rights by users of that marketplace, but also to preventing further infringements of that kind.” see also Global FoE.
Topic, claim, or defense
Type of service provider
Host (Including Social Networks)
Internet Access Provider (Including Mobile)
OSP obligation considered
Block or Remove
Type of law
General effect on immunity