Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd and Others.
Date: 2014-09-11
28. As regards the question whether that remuneration must necessarily be provided by the recipient of the service himself, it should be noted that such a condition is expressly excluded by recital 18 in the preamble to Directive 2000/31, in the light of which Article 2(a) of Directive 2000/31 must be interpreted, which states that information society services extend, in so far as they represent an economic activity, to services ‘which are not remunerated by those who receive them, such as those offering on-line information or commercial communications’.
29. That interpretation corresponds to that of the concept of ‘services’ within the meaning of Article 57 TFEU, which also does not require the service to be paid for by those for whom it is performed (see, inter alia, the judgment in Bond van Adverteerders and Others , 352/85, EU:C:1988:196, paragraph 16).
40. It follows, moreover, from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established in that directive cover only cases in which the activity of the information society service provider is of a merely technical, automatic and passive nature, which implies that that service provider has neither knowledge of nor control over the information which is transmitted or stored (see the judgment in Google France and Google , C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 113).
41. The Court deduced therefrom, in order to establish whether the liability of a service provider could be limited under Article 14 of Directive 2000/31, that it was necessary to examine whether the role it plays is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores (see, to that effect, the judgments in Google France and Google , EU:C:2010:159, paragraph 114, and L’Oréal and Others , C‑324/09, EU:C:2011:474, paragraph 113).
42. The Court therefore held that the mere fact that a referencing service is subject to payment, that the provider sets the payment terms or that it provides general information to its clients cannot have the effect of depriving that provider of the exemptions from liability provided for in Directive 2000/31 (see the judgments in Google France and Google , EU:C:2010:159, paragraph 116, and L’Oréal and Others , EU:C:2011:474, paragraph 115).
43. By contrast, the role played by the provider in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant (see the judgment in Google France and Google , EU:C:2010:159, paragraph 118).
44. Likewise, where the provider provides assistance entailing, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it does not take a neutral position between the customer-seller concerned and potential buyers but plays an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale (the judgment in L’Oréal and Others , EU:C:2011:474, paragraph 116).
54. As regards the question whether those articles create individual rights capable of being invoked by the service provider as grounds of defence in the context of a civil action for defamation, it should be noted that, with regard to proceedings between individuals, such as those at issue in the main proceedings, the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, the judgments in Marshall , 152/84, EU:C:1986:84, paragraph 48, and Faccini Dori , C‑91/92, EU:C:1994:292, paragraph 20), without prejudice, however, to possible actions for damages capable of being brought against the State for harm caused as a result of infringements of EU law by that State (see, inter alia, the judgment in Francovich and Others , C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 35).
56. On the assumption that such limitations are not however transposed into national law, the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and the purpose of that directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 288 TFEU (see, inter alia, the judgments in von Colson and Kamann , 14/83, EU:C:1984:153, paragraph 26, and Marleasing , C‑106/89, EU:C:1990:395, paragraph 8).