Together with internet jurisdiction, ISP liability represents core ontological issue in cyberlaw. On the internet, everything happens through some service which is provided mostly by a private entity. It is then essential for mere existence of law on the internet to properly tackle the role and legal status of ISPs.

The issue of ISP liability is neither new nor specifically European. The first big case that set argumentative standards (and still inspires current arguments) was the SONY Betamax case - when reading the opinion of the court, note also the dissenting opinion of Justice Blackmun.

Another case that illustrates the issue of ISP liability and contains inspirational arguments is Napster.

The mere definition of 'information society service' is in European law provided by Directive (EU) 2015/1535.

The core of ISP liability regime is laid down in European law in the E-commerce Directive which distinguishes between the following classes of ISPs:

- mere conduit

- caching

- hosting

Besides the substantive limitations of liability of ISPs, it is also important to note the respective procedures, in particular the notice-takedown process and consequent legal proceedings.

This seminar is partly case-based. We discuss particular cases and demonstrate respective concepts and interpretive problems. In particular, we focus on the following cases that outline the scope of liability limitation of various typical ISPs:

Widely discussed is namely the issue of active role of an ISP in detecting and tackling illegal user activities. General monitoring is prevented by Art. 15 of the E-commerce Directive, but courts around the EU steadily develop a doctrine of active obligations that might include filtering. Most relevant is the German approach that started with BGH cases: BGH, 04.03.2004 - III ZR 96/03 and BGH, 19.04.2007 - I ZR 35/04 (both involving Rolex).

The doctrine of active obligations is also being developed by the ECHR. Particularly important are in that regards these cases:

For a comparison, here is a nice summary of the ISP liability regime in the U.S. (just for information):

 Active obligations of ISPs were also discussed by the CJEU in the following cases:

The following cases were not discussed in class and will not be subject to exams: