Guidance on IPRED – clarifying the concept of intermediary

IPRED refers in its Articles 9(1)(a) and 11 to the possibility of issuing injunctions against ‘any intermediary whose services are used by a third party to infringe IPRs’. The Directive does not specify which economic operators are to be considered as intermediaries for the purpose of the Directive.

The CJEU has clarified that an economic operator can qualify as an intermediary within the meaning of these provisions when it provides a service which is capable of being used by one or more other persons in order to infringe one or more IPR or to access infringing contents or goods. For it to be qualified as such, the economic operator does not need to have a specific relationship, for instance through a contractual link, with those other persons.

In consequence, the application of Articles 9(1)(a) and 11 of the Directive is not limited to a specific group of intermediaries but spans across different sectors, and includes both offline and online services. The CJEU has specifically stated that internet service providers, social networking platforms, online marketplaces and tenants of market halls should be seen as intermediaries in the circumstances of the facts at issue in the legal proceedings at hand.

The Commission considers (de), on the basis of the CJEU’s case law available to date, that there is no reason to believe that this is an exhaustive list and that, therefore, a range of other economic operators which provide services capable of being used by other persons to infringe IPR can also fall within the scope of the Directive’s notion of intermediary, which is to be determined on a case-by-case basis. In the Commission’s view, such economic operators can, depending on the case, potentially include for instance providers of certain information society services, postal and parcel services providers, transport and logistics companies and retailers.

The Commission further recalls that Articles 9(1)(a) and 11 should be interpreted and applied in light of the general requirements of Article 3 and the applicable fundamental rights protected in the EU’s legal order. Accordingly, on the one hand, the involvement of such economic operators, which did not themselves engage in any infringing activity, in the process of IPR enforcement under IPRED can be required to ensure that rightholders are in a position to effectively enforce their rights.

On the other hand, there may in a given case be no justification for such involvement where the services provided are so distant or immaterial to the (alleged) infringement that the economic operator in question cannot reasonably be expected to significantly contribute to such effective enforcement, meaning that its involvement would be disproportionate and unnecessarily burdensome.

Economic operators which provide a service capable of being used by other persons in order to infringe IPR can, depending on the facts of the case at hand, qualify as intermediaries within the meaning of Articles 9(1)(a) and 11 of IPRED, also in the absence of a specific relationship, such as a contractual link, between those two parties.