L'Oréal v. eBay : is the tide finally turning for hosting providers?
Faculty of Law
Computer law review international / Cri / Computer und Recht international / CRi
, p. 1-7
University of Antwerp
On 9 December 2010, Advocate General Niilo Jääskinen delivered his opinion in the L'Oreal v. eBay case (C-324/09), in which he analyses the position of online intermediaries ― in particular electronic marketplaces such as eBay ― under the E U trade mark legislation (directive 89/1104 of 21 December 1988 to approximate the laws of the member states relating to trade marks, and Council Regulation 40/94 of 20 December 1993 on the Community trade mark), the eCommerce Directive (directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market) and the Enforcement Directive (directive 2004/48/EC of29 April 2004 on the enforcement of intellectual property rights). In light of the diverging case law across the EU, it can be hoped that this opinion paves the way for a correct and balanced application of EU law in the context of online intermediary services. While the Advocate General takes into account the practical implications of the legal obligations imposed on online intermediaries, in view of the technical and commercial reality his opinion unfortunately opens the door for a general monitoring obligation for online service providers.