BILETA 2008 : More on regulation from Rowland and Stalla-Bourdillon

Prof. Diane Rowland (Aberystwyth) spoke about the Promusicae case (see here), noting that it deals with five directives and 20 specific Articles and raises many more questions to be dealt with in future cases. She mentioned six issues or elements that were relevant : (in no particular order), theories of governance, hierarchies of rights, risk, copyright, proportionality, data protection.

What I liked in particular about this talk was the discussion of other cases in national courts in the EU, including Peppermint Jam v Telecom Italia, SCPP v Anthony G (I’ve added these links although better sources may be available).

The chair of the session also asked an interesting question about whether the Promusicae case would differ in the case of defamation; Rowland thought that courts would have to tackle difficult hierarchy-of-rights questions in such a situation.

Another questioner picked this up and referred to the US situation where there is greater potential liability for ISPs in the case of IP (under the DMCA) as compared with defamation (excluded under section 230). This is a question that’s particularly important if you’re looking for what’s ‘important’, I think….with perfect timing, then, Sophie Stalla-Bourdillon (EUI) gave an overview of ISP/host participation in regulation through tort law in the US and Europe. She looked at the various US and EU provisions on immunity and liability, including French implementation of the E-Commerce Directive as an example of national reception of the EU provisions (the loi sur la confiance dans l’économie numérique). It does seem that the French law has gone in a couple of different directions – greater immunity in certain areas (in that content should be ‘manifesty illegal’ but less so in others, including what looks like an obligation to monitor in certain circumstances and a loss of liability in the case of poor self-regulation. I was teaching this in a recent class and it’s always interesting to see how someone else approaches the topic and explains it from scratch – everyone has their own style and I picked up a couple of ideas.

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