Limited liability for the net? The future of Europe’s e-Commerce Directive


When the internet went mainstream, Europe’s e-Commerce Directive created the basic legal framework for online services, setting clear limits on liability for digital platforms. Platforms were not held responsible for any illegal material posted, and were only obliged to bring down any illegal material when informed of its presence. This limited liability allowed the internet to boom.

But today, a decade and a half after its implementation, the e-Commerce exception is under attack. The internet has grown up and plays a crucial role in our economy and society, and a consensus is emerging that digital exceptionalism must end. Governments, courts and public opinion are demanding that internet firms police and prevent illegal material from being posted on their platforms. In the belief that the internet feeds piracy, copyright holders clamour for a crackdown, while police and intelligence services think that the net feeds extremist terrorism and seek access to data from suspects.

Little by little, European Union officials are responding by looking at overhauling or at least chipping away at this key piece of legislation. So far, however, proposals seem to be sneaking in only through the back door: for example, obscure articles in the newly proposed copyright and audiovisual directives would de facto undermine the e-Commerce liability protection.

Rather than continuing to engage in this camouflaged discussion, the CEPS Digital Forum organised a public seminar on March 21st to openly exchange views and knowledge on the topic. Leading academics, EU officials, civil society activists, internet company practitioners, and rights holder were invited to look at both the cause of discontent over the present state of the e-Commerce directive and the prospects for reform that would be acceptable to all. CEPS intends to explore these issues further in forthcoming publications and future events, enriched by the various ideas introduced at this event.