3.7 その他の仲介者：電子商取引指令に基づく仲介サービス提供者

The E-Commerce Directive (170) establishes the legal framework for electronic commerce in the EU. It introduces harmonised rules on issues such as the transparency and information requirements for online services providers, commercial communications or electronic contracts.

The E-commerce Directive does not cover categories of economic operators, but rather describes different categories of activities. The most relevant categories of activities, from a product safety and compliance point of view, are the hosting activities (171). Hosting activities are activities such as storing information provided by the recipient of the service, e.g. web shops and online market places or platforms.

Intermediary service providers carrying out the activities described above benefit from an exemption of liability for damages or criminal sanctions related to the content provided by third parties using their networks. However, the liability exemption is not absolute. In the case of hosting activities, which are the most relevant for the product safety and compliance area, the exemption only applies if the intermediary service provider (1) has no actual knowledge or awareness about the illegal nature of the information hosted and (2) upon obtaining such knowledge or awareness of the illegal content (for instance by a ‘sufficiently precise and adequately substantiated’ notice (172)), it acts expeditiously to remove it or disable access. If they do not fulfil these conditions, they cannot be covered by the exemption and thus they can be held liable for the content they host.

Following Article 15 of the E-commerce Directive, Member States cannot impose either a general obligation on these providers to monitor the content or a general obligation to actively seek facts or circumstances indicating illegal activity. This means that national authorities cannot establish a general obligation for intermediaries to actively monitor their entire Internet traffic and seek elements indicating illegal activities such as unsafe products.

The ban on requesting general monitoring, however, does not limit public authorities in establishing specific monitoring requirements, although the scope of such arrangements have to be targeted.

In practice, this means that national authorities can contact the hosting providers who, when notified of unlawful activity, if they want to benefit from the exemption of liability, have to remove or disable the content, meaning that the unsafe/non-compliant products would no longer be accessible to EU customers through their services.

Regulation (EU) 2019/1020 explicitly addresses information society service providers. Information society service providers are required to cooperate with the market surveillance authorities at the request of the market surveillance authority and, in specific cases, to facilitate any action taken to eliminate or, if that is not possible, to mitigate the risks presented by a product that is or was offered for sale online through their services (Article 7). In particular, market surveillance authorities have the power, where no other effective means are available to eliminate a serious risk posed by a product, to require the removal of content referring to the related products from an online interface or to require the explicit display of a warning to end users when they access an online interface (Article 14 (4)(k)(i)). Where such a request has not been complied with, market surveillance authorities have the power to require information society service providers to restrict access to the online interface, including by requesting a relevant third party to implement such measures (Article 14 (4)(k)(ii)). Market surveillance authorities should assess the most appropriate action to be taken on a case-by-case basis and with a view to the principle of the proportionality, taking into account the level of the risk, if the economic operator is identifiable, the urgency, if previously measures have been taken against given product etc. (173).