No More Mere Conduit? Abandoning Net Neutrality and Its Possible Consequences on Internet Service Providers' Content Liability

Date01 March 2013
Published date01 March 2013
DOIhttp://doi.org/10.1002/jwip.12006
AuthorKalle Hynönen
No More Mere Conduit? Abandoning Net Neutrality
and Its Possible Consequences on Internet Service
Providers’ Content Liability
Kalle Hyn
onen
IP Counsel, Sanoma Corporation
The Body of European Regulators for Electronic Communications issued in May 2012 a report dealing with non-
neutral practices of the European Internet access providers. According to the report, peer-to-peer and voice over IP
traffic are being blocked or throttled widely, and various other signs of practices that go beyond the presumably neutral
role of an Internet access provider are reported. This essay discusses these non-neutral practices from the perspective
of the content liability exemption provided in the article 12 of the e-commerce directive and asks how far the limits set
out in the article can be stretched in connection with voluntarily adopted “non-neutral” practices before the liability
exemption is lost. Moreover, the essay takes a prospective look and asks what would be the effects of losing the mere
conduit defence especially from copyright liability perspective, and can the risk of losing the safe harbour work as a
safeguard for preserving the openness of the Internet. While it is difficult to give a definite answer at this stage, this
essay suggests that a strict interpretation of the article 12 requirements might in some cases well lead to loss of the
liability exemption.
Keywords European Union; e-commerce; information technology; limitations
No More Mere Conduit?
The Body of European Regulators for Electronic Communications (BEREC)
1
draft report of 29 May 2012
suggests that the net of many Europeans may no longer be as neutral as it used to be: Peer-to-peer and voice
over IP (VoIP) traffic are being blocked or throttled widely, and various other signs of practices that go
beyond the presumably neutral role of an Internet access provider are reported.
2
While these findings raise concerns about the future of the Internet as a neutral platform, they also
justify questions about the role and liability of the Internet access providers (ISPs). The discussion on
service providers’ content liability in Europe has during the last few years centred on the e-commerce
directive’s
3
(ECD) article 14 dealing with hosting providers’ exemption of liability (Edwards, 2009,
p. 65), whereas the conditions and limits of exemption under article 12 “mere conduit” provision have
received less attention. Moreover, the discussion has focused on activities that are imposed upon ISPs by
states or other external parties, such as copyright owners (Edwards, 2009). The effects of voluntarily
adopted non-neutral practices on the ISPs’ mere conduit defence under the ECD have not been critically
analysed in Europe (Frieden, 2008).
4
However, the recent practices and technologies employed by many ISPs give rise to the question,
whether the limits of the mere conduit defence too should be examined in more detail? Until recently, ISPs
have been plausibly defending themselves from accusations of facilitating copyright infringements by
invoking the fact that they, like post offices, do not know what the packets they transmit contain.
5
As the
BEREC study suggests, this may, however, no longer be the case and the ISPs might have incentives to
abandon their neutral role voluntarily (De Beer and Clemmer, 2009, p. 406).
The aim of this essay is therefore to examine these recent developments from the perspective of the
content liability exemption provided in the article 12 ECD and to discuss critically how far the limits set
The Journal of World Intellectual Property (2013) Vol. 16, no. 1–2, pp. 72–86
doi: 10.1111/j.1747-1796.2013.12006.x

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