Internet Service Providers’ Monitoring Obligations: Recent Developments

Ebenezer Duah

Abstract

Since 2004, legislation or courts in Europe have insistently required internet service providers (ISPs) to play various roles in the fight against online copyright infringement. Some of the obligations being placed upon the ISPs have included the disclosure of subscribers’ personal data, the filtering and blocking of access to infringing content or committing to sustained cooperative regulatory policies such as a graduated response mechanism. Although such approaches may be aimed at controlling illicit file-sharing, the trends being pursued by the copyright holders are also to be seen by ISPs as a move from their “passive-reactive roles” towards “active-preventative” roles. Particularly, the scope of ISP obligations are increasingly being seen as blurred and this has prompted several legal challenges in the courts with some of the litigations ended at the national levels and others required the intervention of the European Court of Justice. This paper will examine the extent to which the monitoring obligations placed upon the ISPs have been interpreted and assess the possible implications for the fight against file-sharing.

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