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8 Oslo L. Rev. 4 (2021-2022)

handle is hein.journals/oslo8 and id is 1 raw text is: Oslo Law Review SAlDiflAVIAfl ufIVERSITY PRESS Volume 8, No.1-2021, p.4-29 ISSN online: 10.18261/ISSN.2387-3299 RESEARCH PUBLICATION DOI: https://doi.org/10.18261/ISSN.2387-3299-2021-01-01 Liability exemptions of non-hosting intermediaries: Sideshow in the Digital Services Act? Sebastian Felix Schwemer Associate Professor, Centre for Information and Innovation Law (CIIR), University of Copenhagen Adjunct Associate Professor, Norwegian Research Center for Computers and Law (NRCCL), University of Oslo sebastian.felix.schwemer@jur.ku.dk Tobias Mahler Professor, Norwegian Research Center for Computers and Law (NRCCL), University of Oslo tobias.mahler@jus.uio.no Hekon Styri Senior Advisor, Norwegian National Security Authority Abstract The European Union is currently discussing a reform of its intermediary liability rules with its recently proposed Digital Services Act. The existing rules in the e-Commerce Directive (Directive 2000/31/EC) offer a safe harbour from liability for certain intermediary functions that are central to the functioning of the internet. A safe harbour for intermediaries is one of the regulatory cornerstones that help protect innovation, creativity and the free flow of information. At the same time, these rules are under pressure. This paper discusses a subset of 'non-hosting' inter- mediary functions. Some of these have traditionally been less visible in content-related regulatory debates. We look at selected examples of functions related to the domain name system (DNS), content delivery networks (CDNs), cloud processing and live-streaming. The current liability exemption regime under the e-Commerce Directive focusses on transmission in, or access to, a communication network, as well as storage. However, significant grey areas arise both in relation to what we call the 'auxiliary network intermediary' function (as opposed to 'direct network intermediary' functions corresponding to 'mere conduit' functions), which does not transmit or provide access, and the 'temporal provision and processing of information', which is different from storage. Keywords Intermediary liability, self-regulation, content regulation, Digital Services Act, e-Commerce Directive, content delivery networks, domain name system Copyright © 2021 Author(s). This is an open access article distributed under the terms of the Creative Commons CC-BY 4.0 License (httos://creativecommons.org/licenses/by/4.0/).

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