Analyzing the Papasavvas Case: Intermediary Liability in the Digital Age
This post examines the recent Court of Justice of the European Union (CJEU) ruling in the Papasavvas case, which explores the definition of “intermediary” in EU information technology law. This issue has become increasingly complex since the drafting of the eCommerce Directive in 2000, as the digital landscape has evolved to include services blurring the lines between content providers and transmitters.
Case Background
Mr. Papasavvas (P) filed a defamation lawsuit against the newspaper O Fileleftheros for articles published in print and online. The national court referred several questions to the CJEU regarding the application of the eCommerce Directive to this case, particularly focusing on intermediary liability.
CJEU Judgment
The CJEU first addressed preliminary objections regarding admissibility, ultimately dismissing arguments about timing and the defendants’ (newspaper publishers) status under the eCommerce Directive.
The court then tackled the question of whether the online publication of the newspaper constituted an “information society service” (ISS) as defined by the Directive, even if users did not pay for access. The court confirmed that based on the Directive’s wording and previous rulings, indirect payment through advertising revenue qualifies as remuneration, thus meeting the criteria for an ISS.
However, the CJEU clarified that despite being categorized as an ISS, the newspaper could not benefit from the intermediary immunity provisions (Articles 12-14) of the Directive. These provisions, the court emphasized, only apply to services with a “merely technical, automatic and passive nature.” Since the newspaper publisher demonstrably had knowledge and control over the published content, they could not be considered a neutral intermediary and were therefore subject to civil liability for defamation.
The CJEU also addressed whether the intermediary immunity provisions applied to consumer-to-consumer disputes (as in this case) or solely to business-to-consumer situations. The court affirmed that these provisions applied to both scenarios.
Finally, the court considered whether Articles 12-14 of the Directive prevented the issuance of interim measures like injunctions or if they could be invoked as legal defenses by ISS providers. The CJEU concluded that the availability of remedies was a matter of national law, subject to principles of equivalence and effectiveness.
Regarding the horizontal direct effect of the immunity provisions, the court reiterated the general principle that directives themselves cannot impose obligations on individuals and therefore cannot be directly invoked against them. However, the court acknowledged the applicability of indirect effect and consistent interpretation.
Analysis and Implications
While the CJEU’s decision in Papasavvas might appear straightforward in reaffirming that content creators cannot claim intermediary status, it raises crucial questions about the application of the eCommerce Directive in today’s digital environment.
The absence of an Advocate General opinion is notable, particularly given the ongoing Delphi case before the European Court of Human Rights, which touches on similar issues of online defamation and freedom of expression in the context of user-generated content. The Papasavvas judgment seemingly overlooked freedom of expression considerations despite acknowledging their importance in the digital realm.
The case also highlights the potential for jurisdictional arbitrage and the lack of an “anti-abuse” clause in the eCommerce Directive, unlike in the Audiovisual Media Services Directive. The court’s interpretation of “remuneration” in the context of online services, aligning with previous cases like Bond van Adverteerders, underscores the broad understanding of this concept, which could have implications for user-generated content on ad-supported platforms.
The CJEU’s clarification on the applicability of intermediary immunity provisions to both business-to-consumer and consumer-to-consumer cases is significant. However, the judgment’s affirmation of national procedural autonomy concerning remedies like injunctions, while seemingly allowing for such measures, potentially creates uncertainties.
Lastly, the court’s analysis of the horizontal direct effect of the intermediary immunity provisions, emphasizing the general principle against imposing obligations on individuals, might limit the protection afforded to intermediaries if Member States fail to implement or misapply the concept of indirect effect.
In conclusion, the Papasavvas case, while reaching a seemingly clear outcome, exposes the complexities in applying the eCommerce Directive to contemporary online services. It emphasizes the need for a nuanced understanding of intermediary liability in the digital age and highlights the potential challenges faced by individuals seeking redress for online harms.