Abstract
The general principles of tort law are not harmonized within Europe. However, regarding Internet services that may be misused for unlawful acts (including, but not limited to, intellectual property infringement), the E-Commerce Directive has created a legal framework for exemptions from liability (the safe harbor). In that regard, the E-Commerce Directive is the European equivalent of the U.S. Digital Millennium Copyright Act (DMCA), with the notable distinction that the ECommerce Directive applies horizontally, thus encompassing trademark infringement. Articles 12 through 14 of the E-Commerce Directive stipulate that, regarding transmission, caching and hosting, no liability will ensue if the person rendering such services: (1) confines his or her role to enabling use by others; and (2) reacts expeditiously upon receiving information about illegitimate content. Article 15 sets forth explicitly that Internet service providers (ISPs) acting within the limits prescribed in Articles 12 through 14 have no obligation to monitor content proactively. The directive does not spell out the consequences for ISPs that do not comply with those rules. The legal grounds on which they are eventually held liable, and whether liability is for secondary or primary infringement, are to be determined by national law.