Title: The liability of mobile operators for the content of independent content providers to mobile commerce networks in the European Union: does self-regulation pave the way for new EU rules?

Authors: Rene Franz Henschel

Addresses: Department of Law, Aarhus School of Business and Social Sciences, Centre for International Business Law (CIBL), Aarhus University, Hermodsvej 22, 8230 Aabyhoej, Denmark

Abstract: According to Article 12 of the European E-Commerce Directive (on |mere conduit|), the liability of service intermediaries is limited. Furthermore, Article 15(1) of the e-commerce directive states that the member states may not impose a general duty to monitor the information which the intermediaries transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity. However, the article does not prevent self-regulation or co-regulation for monitoring content providers who do not deliver services that conform to established standards or who otherwise cause problems to end users. On the contrary, according to Article 16, self-regulation or co-regulation are welcomed. In Denmark, major members of the Danish Telecommunications Industries Association and the Consumer Ombudsman recently concluded an agreement whereby the mobile operators are subject to certain rules and liabilities for premium rate services delivered by independent content providers. The present article explains the content of these new rules. In the author|s opinion, the rules give better consumer protection and thereby enhance the creation of the internal market for e-commerce activities. Such rules should be considered when designing the future legal regime in the European Union and elsewhere.

Keywords: service intermediaries; EC Directives; mere conduits; consumer protection; self-regulation; co-regulation; mobile operators; independent providers; content providers; mobile networks; European Union; EU; European Commission; member states; information monitoring; information storage; information transmission; obligations; illegal activities; established standards; end users; Denmark; Danish Telecommunications Industries Association; ombudsman; premium rate services; internal market; legal regimes; private law; mobile commerce; m-commerce; e-commerce; electronic commerce; pervasive computing; marketing; contracting; contracts; liability; legal aspects.

DOI: 10.1504/IJPL.2011.039366

International Journal of Private Law, 2011 Vol.4 No.2, pp.290 - 298

Published online: 31 Mar 2011 *

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