Copyright and Internet Service Provider “Liability”: The Emerging Realpolitik of Intermediary Obligations

Online service providers are increasingly the focus of renewed efforts to enforce copyright online in the European Union (EU). Traditionally, these providers benefitted from safe-harbour immunity to the extent that their role in assisting online enforcement was relatively minimal. In light of recent proposals for reform, and the spread of the “blocking injunction” in the EU, this traditional position is coming under pressure. That pressure finds expression by way of a principle of accountability, leveraged by the entertainment industry and policymakers alike to carve out new obligations for these intermediaries, under the existing legal framework. This article focuses on the position of these intermediaries under Art. 16 of the European Charter of Fundamental Rights. Protecting the freedom to conduct a business, this provision has come to underpin a discourse of commercial fundamental rights, argued to have the capacity to curb the spread of obligations via accountability. This article takes a sceptical view, arguing that lessons from judicial approaches to the blocking injunction at the Member State level, indicate that the discourse of commercial fundamental rights may well overstate the strength of this rights-paradigm as a counter to obligations generally.