9 The fact whether online platform will be allowed to benefit from liability exemption depends (according to case of CJEU) on the degree of control over the information stored on the platform. In its case law the CJEU has clarified that the safe harbour under art 14 (1) E- commerce Directive is only available to the intemediaries that take neutral position between customers and providers.25 The distinction between passive and active hosts is based on the expansive application of Recital (42) of E- commerce Directive, which requires intermediaries’ activities to be of a mere technical, automatic, and passive nature. The CJEU applied Recital (42) to hosting services in Google France26 and L’Oréal v. eBay, initiating the division between active and passive hosts.27 The active role of the platform within the mentioned activities results in the platform operator losing the protection of safe harbour. The safe harbour is not applicable to other activities of platforms, (e.g., payment tools, provision of a basic service, publication of reviews, etc.).28 The boundary between active and passive role of the platform is blurred. Several academic studies have highlighted the uncertainties surrounding the application of the E-commerce Directive to online platforms.29 Secondly, the E-commerce Directive was drafted at a relatively early stage of the development of internet. 30The CJEU has ruled in different ways on the question of whether the service provided by online platforms must be classified as an 'information society service'. In its Uber case31 from 2017 the CJEU concluded that the services provided by Uber should be classified as ‘a service in the field of transport’ and should be excluded from the information society services. On the contrary, in the judgement from 19 December 2019 in the Airbnb case32, the 25 Busch and Mak, 2021, p.111. 26 CJEU (C-237/08) Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and (C-238/08) Luteciel SARL and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others Judgment of the Court (Grand Chamber) of 23 March 2010. Point 3 of Judgment ‚Article 14 of 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’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.‘ 27 Kuczerawy, 2018. 28 Madiega and Members' Research Service, 2020, p.4. 29 Ibid p.5. 30 Duivenvoorde, 2022, p. 45. 31 The CJ EU (C-434/15), Asociación Profesional Elite Taxi v Uber Systems Spain, SL of 20 December 2017. 32 The CJ EU (C-390/18) in the criminal proceedings against X of 19 December 2019.
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