Peer-to-Peer Privacy Violations and ISP Liability: Data protection in the user-generated web

Abstract

Since the adoption of the EU e-Commerce Directive, web hosting has dramatically changed. User-generated content is usually uploaded onto platforms that facilitate and support users in preparing content and making it available. Commercial companies who make a profit by associating advertisements to user-generated materials run such platforms in most cases. We shall address the legal framework applicable to ISPs managing platforms for user-generated contents. Can they be viewed as mere host providers, even though their activities include not only distributing content, but also indexing it and linking it to advertisements? As user-generated-content often concerns third parties, we shall consider whether liability exemptions for ISPs are applicable to data protection violations regarding third parties' information uploaded by users. We shall address this issue through a comparative analysis of cases, taking into account decisions of the European Court of Justice (ECJ) and of the European Court of Human Rights (ECtHR), the case law of some EU member states (in particular France and the Netherlands), as well as opinions of national data protection authorities.