Intermediaries' liability for online copyright infringement in the EU: Evolutions and confusions

Nearly fifteen years ago and since the adoption of the E-commerce Directive 2000/31/EC the issue of the intermediaries' liability in Europe was thought to have been settled by the creation of a “safe harbor” regime, inspired by the American model. This article focuses on two recent jurisprudential interpretations on the question of intermediaries' liability: the Court of Justice of the European Union (CJEU) Telekabel judgment and the Judgment of the European Court of Human Rights (ECtHR) in the case Delfi v Estonia. The author analyses these evolutions and submits that intermediaries' asylum is in fact much less absolute than it looks. The article also demonstrates that intermediaries' safe harbor will have to deal with the recognition of human rights that could open new horizons to the development of the regulation of the intermediaries' liability.