Intermediaries in the Case Law of the Court of Justice of the EU: The Interplay between Liability Exemptions and Rules on IP Protection

Through the gateway of the preliminary ruling procedure, the Court of Justice of the European Union (CJEU) has become a major actor in shaping the legal regime of online intermediaries within the EU. This has not proven an easy task to accomplish, due to the sheer heterogeneity of businesses that may be labeled as “intermediaries”, but also to the fragmentation of the legislative framework: Whereas the 2000 e-Commerce Directive grants intermediaries exemptions from liability with a view to encouraging the online dissemination of information, other pieces of legislation require Member States to make injunctive relief available against intermediaries for the purpose of protecting intellectual property rights. In reviewing the Court’s case law on the matter, the chapter addresses the uncertain boundaries of liability exemptions and critically discusses the Court’s reliance on a balancing test between competing rights.