Presentation of Oliver Süme (attorney-at-law) at the Web 2.0 EXPO Berlin, Nov. 7th 2007.

1. I tube, you tube, we tube
unlimited content - unlimited liability?
Web 2.0 EXPO
Berlin, November 7th 2007
Oliver J. Süme, Attorney-at-law
RICHTER • SÜME
RICHTER • SÜME
www.richter-sueme.de
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2. Web 2.0: What‘s new from a legal point of view?
 More than ever is the user (co-)producer, director, sender and
provider of any kind of internet content.
 The variety of content and the number of users generating content
are exploding.
 160 million members at MySpace.com, 500.000 new members every
week.
 Exploding content leads to exploding infringement of different
types of rights.
RICHTER • SÜME
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3. The most frequently infringed rights in web 2.0
 Copyright (Music, Movies, Pictures, TV-Series, Music-Clips, etc)
 Personality Rights (defamation, etc.)
 Protection of Minors
 Hate speech / racism
 Unfair commercial practices
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4. The legal framework in Europe
 In 2000 the EU passed the E-Commerce directive (EG/2000/31)
 Applicable on all Information and Communication Services
 Laws on liability of Internet Service Providers / Intermediaries for third
party contents
 Enforced in all EU member countries
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5. System of liability for third party content in the EU
 Narrow limitations to liability of intermediaries based on the activities
carried out by them: mere conduit (Article 12), caching (Article 13) and
hosting (Article 14)
 Exemptions from civil, administrative and criminal liability for all types of
illegal activities initiated by third parties
 Prohibition to impose on internet intermediaries
- a general obligation to monitor information they transmit or store
- a general obligation to actively seek facts and
circumstances indicating illegal activity
 Constitutes the appropriate basis for development of rapid and reliable
procedures for removing and disabling access to illegal information
(Notice and take down).
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6. Liability of internet intermediaries
 The E-Commerce directive leads to different liability for Access-Provider,
Host-Provider and Content Provider
 Content Provider is liable for his own content
 Host Provider is not obliged to search for infringement, but has to delete
illegal content as soon as he has knowledge of infringement (“notice and
take down”)
 Access Provider is not liable for third party content
RICHTER • SÜME
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7. System of liability for third party content in the EU
Host Provider is not obliged to search for infringement, but has to delete
illegal content as soon as he has knowledge of infringement (“notice and
take down”)
The „Web 2.0 clause“ in the EU
RICHTER • SÜME
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8. This seems to be an easy system, but...
 The “Web 2.0 clause” of the EU directive has been enforced differently in
the EU member states and is being interpreted differently by national
courts.
 Notice and take down:
When does a Web 2.0 Provider gets notice of an infringement?
- E-Mail of rightholder?
- Official legal notice by Lawfirm?
- Statutory declaration?
RICHTER • SÜME
www.richter-sueme.de

9. Extensive jurisdiction in Germany
 According to several decisions of the “Bundesgerichtshof”, Host-
Providers can be obliged to monitor informations they store and can be
obliged to run filter-software systems to avoid certain infringemets in
future.
 This leads to a heavy legal uncertainty in Germany for Web 2.0 Providers.
 Decisions are to be notified by the European Commission.
RICHTER • SÜME
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10. Notice and take down - the Web 2.0 Dilemma
 Difficult situation for Web 2.0 Providers
If they delete legal content, they are liable for any damage of the content
provider.
If they do not delete, they are liable for any damage of the rightholder.
 Only effective, if part of voluntary agreements between rightholders and
Web 2.0 Providers or established in national laws.
RICHTER • SÜME
www.richter-sueme.de

11. The future of the directive on e-commerce
 Directive is in evaluation process at the EU Comission since 2006.
 Focus on evaluation of liability of intermediaries.
 Member states were called to provide the commission with their
experiences.
 Study about legal and economic impact of the directive in the member
states is expected in the next week.
 Basic changes of liability system is not expected.
RICHTER • SÜME
www.richter-sueme.de

12. What can you do to avoid legal risks?
 Cooperation with rightholders / voluntary agreements concerning notice
and take down.
 Considering the legal risks in contracts / conditions of your services.
 Take information about infringements of rights in your service serious and
make sure, that you provide an effective system to check notices about
infringements.
 Stay informed about jurisdiction and the development of the legal
framework in Europe!
RICHTER • SÜME
www.richter-sueme.de

13. Thank you for your attention!
Further questions?
Do not hesitate to contact me!
Oliver J. Süme
sueme@richter-sueme.de
Tel.: +49 40 380 89 80
Fax: +49 40 380 89 810
RICHTER • SÜME
RICHTER • SÜME
www.richter-sueme.de
www.richter-sueme.de