The European Union is currently discussing a reform of its intermediary liability rules with its recently proposed Digital Services Act. The existing rules in the e-Commerce Directive (Directive 2000/31/EC) offer a safe harbour from liability for certain intermediary functions that are central to the functioning of the internet. A safe harbour for intermediaries is one of the regulatory cornerstones that help protect innovation, creativity and the free flow of information. At the same time, these rules are under pressure. This paper discusses a subset of ‘non-hosting’ intermediary functions. Some of these have traditionally been less visible in content-related regulatory debates. We look at selected examples of functions related to the domain name system (DNS), content delivery networks (CDNs), cloud processing and live-streaming. The current liability exemption regime under the e-Commerce Directive focusses on transmission in, or access to, a communication network, as well as storage. However, significant grey areas arise both in relation to what we call the ‘auxiliary network intermediary’ function (as opposed to ‘direct network intermediary’ functions corresponding to ‘mere conduit’ functions), which does not transmit or provide access, and the ‘temporal provision and processing of information’, which is different from storage.
The EFTA Court has on numerous occasions faced arguments based on international law rules that exist outside the EEA system, and it has dealt with such arguments in disparate ways. The Court is receptive to arguments based on the European Convention on Human Rights, while flatly refusing to engage with arguments based on other treaties. This article outlines the Courtʼs practice in such cases and tries to explain it, with the best explanation being the Courtʼs desire and obligation to maintain homogeneity between the EEA and the EU system. In the future, the Court may be presented with arguments based on the law of the World Trade Organization or the aftermath of the United Kingdom leaving the European Union, and this article suggests how the Court may respond.
In the aftermath of the overthrow of President Morsi in the summer of 2013, Egypt garnered international censure for violations of due process in mass trials. Thousands of members of the political opposition, pro-democracy movement, and other activists and journalists were arrested, held in pre-trial detention, handed lengthy prison sentences, or sentenced to death in criminal courts. This article shows how ordinary criminal courts became a focal point in the repression of political opposition and activists in Egypt in the aftermath of July 2013. Studying the courtsʼ verdicts during a time of socio-political upheaval provides insight into political and judicial dynamics, and how these may interact in times of crisis. The article shows that it was not due to executive pressure that ordinary courts reasoned and ruled as they did, but the ideologies and interests of judges. Several of the verdicts were subsequently overturned by Egyptʼs Court of Cassation for failing to uphold Egyptian standards of due process. This divergence may be motivated by an interest in higher courts in upholding professional and institutional integrity, revealing significant cleavages within the judiciary. This, too, may in part be deemed an expression of judicial independence.
Oslo Law Review
1-2021, volume 8
Oslo Law Review was established in 2014, and publishes research articles from all areas of legal scholarship, as well as interdisciplinary articles or articles that engage with law from the perspective of other related disciplines (e.g. political science, anthropology, sociology, linguistics and philosophy).
Professor Lee A. Bygrave, Department of Private Law, University of Oslo
Professor Alla Pozdnakova, Scandinavian Institute of Maritime Law, University of Oslo
Luca Tosoni, Norwegian Research Center for Computers and Law, Department of Private Law, University of Oslo
Professor Vidar Halvorsen, Department of Criminology and Sociology of Law, University of Oslo
Doctoral Research Fellow Anders Narvestad, Department of Public and International Law, University of Oslo
Professor Shaheen Sardar Ali, University of Warwick
Professor Bert Jaap Koops, University of Tilburg
Professor Elise Poillot, University of Luxembourg
Professor Giovanni Sartor, European University Institute/University of Bologna
Professor Emeritus Carsten Smith, University of Oslo
Professor Lawrence Solum, University of Virginia
Design and typesetting: Type-it AS, Trondheim
Cover design: Scandinavian University Press, Sissel Tjernstad
ISSN online: 2387-3299
The journal is published by Scandinavian University Press (Universitetsforlaget) on behalf of the Faculty of Law at the University of Oslo.