No More Mere Conduit? Abandoning Net Neutrality and Its Possible Consequences on Internet Service Providers' Content Liability

Abstract The Body of European Regulators for Electronic Communications issued in May 2012 a report dealing with non‐neutral practices of the European Internet access providers. According to the report, peer‐to‐peer and voice over IP traffic are being blocked or throttled widely, and various other signs of practices that go beyond the presumably neutral role of an Internet access provider are reported. This essay discusses these non‐neutral practices from the perspective of the content liability exemption provided in the article 12 of the e‐commerce directive and asks how far the limits set out in the article can be stretched in connection with voluntarily adopted “non‐neutral” practices before the liability exemption is lost. Moreover, the essay takes a prospective look and asks what would be the effects of losing the mere conduit defence especially from copyright liability perspective, and can the risk of losing the safe harbour work as a safeguard for preserving the openness of the Internet. While it is difficult to give a definite answer at this stage, this essay suggests that a strict interpretation of the article 12 requirements might in some cases well lead to loss of the liability exemption.