CJEU’s Amazon Decision

The Recent Decision of the Court of Justice of the European Union on the Liability of Intermediary Service Providers: A Cause for Change in the Legal Framework in Turkey?

The Court of Justice of the European Union (CJEU) issued a preliminary ruling against Amazon, which leads to the liability of intermediary service providers for online services for trademark infringement taking place on their platforms.

Louboutin brought cases against Amazon in Belgian and Luxembourg courts in 2019 seeking the protection of its intellectual property rights against the counterfeit sale of its iconic red sole shoes. In its preliminary ruling, CJEU stated that Amazon, as an online sales platform, can be held liable for the offering for sale of counterfeits distributed by itself, and also for the counterfeits sold by third parties on its platforms.

The current legal framework in Turkey, in terms of both case-law and the legislation in force is, on the other hand, quite the opposite.

Pursuant to the Law on the Regulation of Electronic Commerce and the newly enacted Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers, an intermediary service provider is not liable for the unlawfulness related to the contents, products or services offered in the intermediary service provider’s platform, with a few exceptions, which include the obligation to remove and notify unlawful content (following a complaint or becoming aware of it itself), as well as yearly certain reporting obligations depending on the size of the intermediary service provider.

In parallel, Court of Appeal’s decisions support the above-stated limitation of liability of the intermediary service providers and stress that intermediary service providers have no obligations to check or to investigate the products/services to be provided on their platforms.

On account of this new development in EU case-law, one might expect a similar development to take place in the Turkish legislative framework or case-law.

Ergin Mizrahi
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