Thursday, January 20, 2011
The article focuses on the current situation of Spanish case law on ISP liability. It starts by presenting the more salient peculiarities of the Spanish transposition of the safe harbors laid down in the E-Commerce Directive. These peculiarities relate to the knowledge requirement of the hosting safe harbor, and to the safe harbor for information location tools. The article then provides an overview of the cases decided so far with regard to each of the safe harbors. Very few cases have dealt with the mere conduit and the caching safe harbors, though the latter was discussed in an interesting case involving Google’s cache. Most cases relate to hosting and linking safe harbors. With regard to hosting, the article focuses particularly on the two judgments handed down by the Supreme Court that hold an open interpretation of actual knowledge, an issue where courts had so far been split. Cases involving the linking safe harbor have mainly dealt with websites offering P2P download links. Accordingly, the article explores the legal actions brought against these sites, which for the moment have been unsuccessful. The new legislative initiative to fight against digital piracy – the Sustainable Economy Bill – is also analyzed. After the conclusion, the article provides an Annex listing the cases that have dealt with ISP liability in Spain since the safe harbors scheme was transposed into Spanish law.
Download the full text from SSRN at the link.