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L´OREAL vs eBay Judment

The judgment handed down by the European Court of Justice on 12 July 2011 addresses a number of preliminary questions put before said Court by the United Kingdom, in case C-324/09 L’Oreal – eBay, with regard to the sale of L’Oreals products without the companys knowledge through the electronic marketplace managed by eBay.
The judgment handed down by the European Court of Justice on 12 July 2011 addresses a number of preliminary questions put before said Court by the United Kingdom, in case C-324/09 L’Oreal – eBay, with regard to the sale of L’Oreals products without the companys knowledge through the electronic marketplace managed by eBay.

One of the questions raised relates to the liability of the operator of the electronic marketplace.

The United Kingdom requests, on the one hand, that the ECJ should decide whether the exoneration from liability established in Article 14 of Directive 2000/31 on electronic commerce regarding “hosting” is applicable to providers of this type of services and, on the other hand, how it should be dealt with if said operator has “knowledge” of an infringement of rights within the context of this article.

As regards the first of these points, it must be stated that this Judgment is very important, as it acknowledges that the service provider may be declared liable, provided that its role is not limited to that of a mere intermediary of offers, i.e. when it no longer holds a neutral position with regard to said service and takes an active role, as it was concluded that eBay did in the case in question, by promoting sales and performing advertising activities that condition the sales made. Consequently, it is not entitled to claim the exception envisaged in the aforementioned Article 14 of Directive 2000/31.

As regards the second of the points relating to the “effective knowledge” of an infringement by the operator of the service, the ECJ concludes that the service provider is not entitled to claim the exception envisaged in Article 14 if it has become aware of the illegal activity, either through its own investigations or by notification from a third party, and has not acted expeditiously to remove said information or to disable access to it.

The conclusions reached by the ECJ will be of great importance in Spanish judicial practice.

Effectively, when transposing Article 14 of the Directive to Law 34/2002 on Information Society Services, the legislator established that it will be considered that there is effective knowledge when it is thus stated by a competent authority.

Therefore, given that the ECJ now establishes that it is sufficient to have had effective knowledge of the illegal activity and not acted expeditiously to remove the information, it is excessive to require a prior ruling stating the illegality of the acts, as requested by the courts until now.

This is particularly true since there are precedents of judgments in Spain (Supreme Court judgment 773/2009 of 9/12/2009) that provide an interpretation of “effective knowledge” in identical terms to the conclusions of the ECJ.

Carmen Sánchez-Puelles