 I've been asked to give a brief overview of the current European regime for intermediary liability, as it stands at the moment, with a view to identifying the gaps in the current framework and the controversy that those gaps have given rise to, and moving on perhaps a bit to a discussion y cyfnod o'r ddweud ymddangos sydd wedi'u bod yn cael y dyfodol. Ac y fydda'r cyfnod o'r ddweud ymddangos y cymysgau sydd wedi'u gwneud o'r ddweud o'r cyfnod y dyfodol. Felly, fe oedd y cyfnod ymddangos yn y regime neu arlaedd ymddangos? Yn yr hyn, mae'n ystafell y ffordd, y cyfnod ymdangos ar y regime sydd yn y dyfodol yn y dyfodol yn y dyfodol. Mae'r dyfodol yn yn 231 E.C. Felly am y dylau phobl, yr hoffa hwn yn cyflawnio mwylog a'r hoffa hwn yn cyflawnio'r cofodaf meydych chi'n pwylo hwn yn cofod ddebygu. A'n cyflawnio hefyd, ein suffegau mae'r hoffa hwn yn ddiwedd. Dydyn ni'n mynd i'ch gwahod maes arddangos, fe hwn i'ch gwahod maes ardechau. Mae'r amlwgau, a'r hoffa hwn yn ganlu i ech ddeddiw nawr, byddoch ei hyn o'r hoffa hwn. Mae hyn yn cael dechrau at y gofodau pan yw'r hoffa hwn. gael ei dweud i'w tahacaeth Cymru. Dyna os yw i'w ddweud y ddweud ffresfydiau Cymru,MA, o'i cael ei ddweud i pethau mynd dros bendeidlenol a ddweud i bryf, i ddwaith i'w ddweud y ddweud. Mae'r ddweud eisiau ddweud yn dros ddweud i ddweud yn y gwasanaeth yn ei ddweud i ddweud, ychwaneg o dechrau, y ddweud, y ddweud i ddweud, mae hwn hi'n olwfodeg o'r ffordd tŵr o ddweud i'w ddweud. those more attention to this one, the hosting sure harbour. What are the conditions for the enjoyment of hosting safe harbour. I In order to enjoy the protection of the hosting safe harbour an intermediary must not have had knowledge of the fact that it is hosting illegal information, and if it does have such knowledge than it must act expeditiously to take down or block that information now a little bit more attention is necessary here because that the knowledge threshold changes depending on the type of liability from which the intermediary is seeking protection. So if the intermediary is seeking protection from criminal liability, then the knowledge threshold is one of actual knowledge that it is hosting illegal information or content. If on the other hand the intermediary is seeking protection for civil liability than the threshold is a bit lower, in that case the intermediary must not have had awareness of fact or circumstances illnesses," from which it becomes apparent that it is hosting illegal information. So, essentially, what Article 14 of the Eiftschamunieth Directive does, is it hints towards a so-called notice and takedown regime. However, a little bit of attention is necessary here because the Article 14 notice and takedown regime is not as detailed and elaborated as equivalent regimes that we find in national jurisdictions, in Europe, and also other i amlwg presbytynrif ynictwys ar y bydd hyn sy'n eitemall a'r rhywunol yn y pryd y bydd ybarth i'ch anethau i amlwg sydd y dyma wedi yma yn yr uwch, ac mae'r DMA-wyllwer y byddai a'u cyffredinol yn Royall Ysgwrs, which offer quite a detail iddyn nhw i sgolaeth yr yrwntgen i'r rhywunol. Ond ac mae'r rhai a fydd ymlaen chi'n mewn rai ysgwrs, ac wedi ar worni'r rydw i'r oed yn y Rhyw ond wrth y byddwyr yn ymhwyffyr ac yn sydd yn gwaith i fynd i'r cwmysigol yw ymgyrch yn ei ddweud'r rydym yn fwylliantodol ar yr ymdyn nhw i am rydym yn ddiffusio'r cyffredinol ar y mynd arweithaddol yn cyflawni'r gŷnol. Rydym yn cyflawni'n cyffredinol yn ymgyrch â'r ffeyddfyrdd ac yn mynd arweithedd y llyfrfyn ymddangos dim yn eich fod yn ei ffawr. Byddwn yn ychydig ar roedd ddwyng â'r cyllid yn llwyddiadau o'r cyllid yn ymdillodau, ond mae'n gydig i'w ddechrau i'w ei hosedol. Ers y bydd ymlaen nhw'n ffordd o'r cyllid yn ymlaen nhw, mae'r cyllid yn ymlaen nhw yn ymdillodau. Yn ymlaen nhw'n ddweud, y cyllid yn ddweud ymlaen nhw'n ddechrau i'r cyllid yn ymlaen nhw'n ddechrau, ymlaen nhw'n ddweud. Mae'r cyllid yn ymlaen nhw ymlaen nhw'n ddweud. Felly, rydyn ni'n dweud y gweithio'r cwysynt yma ar gyfer y cyfnod Gwgolfrans a'r cyfnod Llorielfyrs, y cyfnod Ebay. What of those cases said? Well, those cases remain controversial to some extent. In those cases, essentially what the CJAEU did is it took the opportunity of the questions presented before it to, depending on your point of view, clarify the current intermediary liability framework or add an additional condition for the enjoyment of that framework by intermediaries. What does that mean? Essentially what the CJAEU did is it relied on the title of Section 4 of the Commerce Directive, which, as you might recall, reads the liability of intermediary service providers, to declare that in order to enjoy the protection of the safe harbors, service providers must be intermediary. It then defined the notion of an intermediary by reference to Recital 42 of the Commerce Directive, and it declared that in order to be intermediary, a service provider has to be sufficiently neutral. And this means that the services that it provides must be of a mere technical and automatic and passive nature, such that they do not give rise to knowledge or control over the information which is transmitted or stored. Now, this has been a bit controversial with a number of commentators arguing that Recital 42 of the Commerce Directive was never intended by the legislator to be applied to the hosting safe harbour, but only to the mere conduit and caching safe harbors. And this is particularly important for the hosting safe harbour, giving the evolving nature of the notion of hosting over the decade and a half since the adoption of the Commerce Directive. So, when the Commerce Directive was first adopted, the notion of hosting seemed to be pretty straightforward. It involves the provision of space on servers for the hosting of webpages and so forth. In the meantime, however, with the evolution, the emergence of modern Web 2.0, which rests on user-generated content, the notion of hosting has evolved towards intermediaries that perhaps have a bit more of an active role. So then the question emerges, does the hosting safe harbour protect those intermediaries? What does the CJU said in this regard? Well, that's not entirely clear. It has given some indications in Google, France and eBay, L'Oreal versus eBay. What it has said is that the mere provision of hosting services, the provision of general information on those services, the setting of terms for the enjoyment of those services and the receiving remuneration are not in and of themselves enough to deprive an intermediary of the protection of the safe harbours. However, if the intermediary is involved in drafting the content, in promoting that content or presenting that content, then it can no longer be considered sufficiently neutral in order to enjoy the protection of the safe harbours. So that's what we know on that front so far. Now, what's important to understand with regard to the safe harbour regime of the Commerce Directive is that it only protects intermediaries from liability in the very strict sense of the word. That is to say liability for monetary compensation. Each of the safe harbours contain a final provision in their final paragraphs, which make it clear that the safe harbours are not able to protect intermediaries from liability for injunctive relief. And in particular in the area of copyright, this possibility of injunctive relief against intermediaries has been given great effect by the European legislator. So in 2001, in the Copyright Directive, in 2001 the Copyright Directive was adopted. Article 83 of the Copyright Directive instructs member states to offer right holders, the holders of copyright, the possibility of implying for an injunction. Member states must offer right holders the possibility of implying for an injunction against intermediaries whose services are used by third parties for the infringement of their copyrights. And in 2004, with the Enforcement Directive, Article 11 of the Enforcement Directive expanded that obligation to all intellectual property rights holders. So all intellectual property rights holders must be given the possibility of applying for injunctive relief before a court for the protection of their copyright. Now might any kind of obligation be imposed on intermediaries in this way through injunctive relief? The answer to that is no, limitations do exist. The most important of those limitations, or at least the most straightforward of those limitations is again found in the Commerce Directive and specifically in Article 15 of the Commerce Directive. Now according to Article 15 of the Commerce Directive, member states may not impose on intermediaries general obligations to monitor the information which they transmit or store, or general obligations to actively seek out indications of illegality. So while injunctions may be imposed for the enforcement of copyright and other intellectual property rights on intermediaries, those are through injunctive relief, those obligations might not involve general monitoring. Is that the only limitation possible on the possible injunctions that can be imposed on intermediaries? No, further limitations have also been introduced by the caseler of the CJU. Of particular importance in this regard are the Sabam cases, so Sabam versus Scarlett and Sabam versus Netlog, as well as the more recent Telecable Veen case from 2014. Now what the court did in those cases was in addition to relying on Article 15 of the Commerce Directive of course, it also interpreted intermediary liability as a question that involves clashes between fundamental rights. So it raised the question of intermediary liability in a way to sort of higher constitutional claims. It reverted to the very basic principles contained within the Charter of Fundamental Rights. The relevant rights that were identified from the court's war were on the one hand of course the rights of copyright holders and the holders of intellectual property rights in general to the protection of their property. That's protected under Article 17 of the Charter of Fundamental Rights as a fundamental right. On the other hand however at the same time we have the rights of the intermediary itself and of the users. So on the side of the intermediary what has to be protected is the freedom of the intermediary to conduct its business. That's protected under Article 16 of the Charter and on the part of the users of the intermediary. Their rights to the protection of their privacy, their data protection, these are protected under Article 7 and 8 of the Charter and of course their right to freedom of expression and information protected under Article 10 of the Charter. As a result what the court said is that when we have such clashes of fundamental rights what's necessary is to find a fair balance between them so that the protection of one right does not disproportionately affect another right. Now the court so far has not given us great deal of information with regard to how to go about striking a fair balance. In itself however this development is very interesting, it's very important. What it does is it reveals this sort of deeper dimension to the question of intermediary liability. It reveals intermediary liability as not simply a regular sort of mundane question of secondary EU law but one that sort of affects our basic fundamental rights, human rights, the basic building blocks of our legal system and our society. And it's important in that regard to also consider that this is also the approach that has been taken more recently by the European Court of Human Rights based in Strasbourg which has released a number of cases again in intermediary liability again taking this fair balance approach. So that's the way the situation currently stands. What indications do we have with regard to how this framework will evolve? At the moment things continue to be a bit murky. What we do have is a communication that was released by the Commission in May last year on the digital single market. There the Commission indicated that it is going to work on preparing a fit for purpose regulatory environment for intermediaries that will also contain rigorous procedures for the takedown of illegal content and avoiding the takedown of legal content. That to me suggests the introduction perhaps of a more detailed notice and takedown or notice and action regime and indeed in a different communication from December 2015 on a copyright, a more European modern copyright framework. The Commission did speak about the introduction of a notice and action framework and perhaps a bit more worryingly at least from my perspective even the introduction of a notice and stay down framework. In addition to that and its communication and digital single market the Commission also indicated the possible and this is very intriguing the possible introduction of a duty of care for intermediaries that will force them into taking more due diligence taking more responsibility for the information that they transmit or store. So that's how things stand at the moment. It will be very intriguing to see how things develop in the future and yes, thank you very much for your attention.