Dealing specifically with the issue of intermediary liability present in the e-commerce directive, the ECJ declares:
“6. Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored.
The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them.
Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31. “
This is a very interesting test. If an Internet intermediary plays an active role in assisting people to optimise the presentation of an infringing product, then they might be held liable. However, even if the intermediary did not play any active role in presenting the goods, they might still be held liable if ” a diligent economic operator should have realised that the offers for sale in question were unlawful”. This is a terrible standard in my view. There seems to be no determination as to volume of transactions, how is it possible for an operator to be able to know the legality of an item when it handles millions of transactions per day? To me this has to be part of any determination.