# C_2019295EN.01000802.xml

| 2.9.2019 | EN | Official Journal of the European Union | C 295/8 |
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2.9.2019

EN

Official Journal of the European Union

C 295/8

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 1 July 2019 — Puls 4 TV GmbH & Co. KG v YouTube LLC and Google Austria GmbH

(Case C-500/19)

(2019/C 295/13)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant on a point of law: Puls 4 TV GmbH & Co. KG

Respondents in the appeal on a point of law: YouTube LLC, Google Austria GmbH

Questions referred

| 1. | Is Article 14(1) of Directive 2000/31/EC (1) to be interpreted as meaning that the operator of an online video platform, as a host service provider, plays an active role, leading to a loss of the liability privilege, as a result of providing or offering to the user the following accompanying activities in addition to the provision of storage space for third-party content:






  — | suggesting videos according to subject areas; |
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1.

Is Article 14(1) of Directive 2000/31/EC (1) to be interpreted as meaning that the operator of an online video platform, as a host service provider, plays an active role, leading to a loss of the liability privilege, as a result of providing or offering to the user the following accompanying activities in addition to the provision of storage space for third-party content:

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suggesting videos according to subject areas;

| — | facilitating visitors to search by title or content information by means of an electronic directory of content, with the user being able to specify the title or content information; |
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facilitating visitors to search by title or content information by means of an electronic directory of content, with the user being able to specify the title or content information;

| — | providing online tips in relation to the use of the service (‘Help’); |
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providing online tips in relation to the use of the service (‘Help’);

| — | with the user’s consent, linking the videos uploaded by the user with advertisements (but not any self-promotion by the platform operator) according to the selection of the target group by the user? |
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with the user’s consent, linking the videos uploaded by the user with advertisements (but not any self-promotion by the platform operator) according to the selection of the target group by the user?

| 2. | Is a national legal position whereby the cease-and-desist obligation of a host service provider (intermediary service provider) in an active role as accessory in respect of infringements by its users exists only on the condition that the accessory has knowingly encouraged the user’s infringement consistent with the first sentence of Article 11 of Directive 2004/48/EC, (2) or is this provision to be interpreted as meaning that the Member States must not make claims for a prohibitory injunction made by rightholders against accessories dependent on knowing encouragement of the user’s infringement? |
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2.

Is a national legal position whereby the cease-and-desist obligation of a host service provider (intermediary service provider) in an active role as accessory in respect of infringements by its users exists only on the condition that the accessory has knowingly encouraged the user’s infringement consistent with the first sentence of Article 11 of Directive 2004/48/EC, (2) or is this provision to be interpreted as meaning that the Member States must not make claims for a prohibitory injunction made by rightholders against accessories dependent on knowing encouragement of the user’s infringement?

| 3. | Are the provisions in Articles 12 to 14 of Directive 2000/31/EC on the liability of intermediary service providers to be considered to be horizontal limitations of liability that benefit any intermediary service provider in a neutral role, even where its activity is to be qualified under copyright law as communication to the public that it has committed itself? |
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3.

Are the provisions in Articles 12 to 14 of Directive 2000/31/EC on the liability of intermediary service providers to be considered to be horizontal limitations of liability that benefit any intermediary service provider in a neutral role, even where its activity is to be qualified under copyright law as communication to the public that it has committed itself?

| 4. | Are Article 14(3) (and also Article 12(3) and Article 13(2)) of Directive 2000/31/EC, Article 8(3) of Directive 2001/29/EC (3) and the third sentence of Article 11 of Directive 2004/48/EC to be interpreted as meaning that the liability privilege in accordance with Article 14(1) of Directive 2000/31/EC is available to a host service provider (intermediary service provider) in a neutral role even in the event of a claim for a prohibitory injunction being brought against it and that therefore even an injunction order by the courts with respect to such an intermediary service provider is admissible only if that intermediary service provider has actual knowledge of the illegal activity or information, or is such an injunction order by the courts admissible only if the host service provider does not expeditiously remove or disable the content objected to as infringing after a specific warning and confirms the infringement in judicial proceedings? |
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4.

Are Article 14(3) (and also Article 12(3) and Article 13(2)) of Directive 2000/31/EC, Article 8(3) of Directive 2001/29/EC (3) and the third sentence of Article 11 of Directive 2004/48/EC to be interpreted as meaning that the liability privilege in accordance with Article 14(1) of Directive 2000/31/EC is available to a host service provider (intermediary service provider) in a neutral role even in the event of a claim for a prohibitory injunction being brought against it and that therefore even an injunction order by the courts with respect to such an intermediary service provider is admissible only if that intermediary service provider has actual knowledge of the illegal activity or information, or is such an injunction order by the courts admissible only if the host service provider does not expeditiously remove or disable the content objected to as infringing after a specific warning and confirms the infringement in judicial proceedings?

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(1)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

(2)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

(3)  Directive of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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