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Re: E-Komm-Direktive, Art. 12(1)(ca)



Anbei eine Gegenüberstellung von Kommissions- und Parlamentsentwurf.

                                 SECTION 4
                                      
  LIABILITY OF INTERMEDIARIES           LIABILITY OF
                                        INTERMEDIARY SERVICE PROVIDERS

                                      
                                 Article 12
   
   Mere conduit
   
   1. Where an Information Society service is provided that consists of
   the transmission in a communication network of information provided by
   the recipient of the service, or the provision of access to a
   communication network, Member States shall provide in their
   legislation that the provider of such a service shall not be liable,
   otherwise than under a prohibitory injunction, for the information
   transmitted, on condition that the provider:
   
   (a) does not initiate the transmission;
   
   (b) does not select the receiver of the transmission; and
   
   (c) does not select or modify the information contained in the
   transmission.


                                       (ca) allows means of
				       surveillance, which are to be
				       rendered operational on the
				       basis of legislation or codes
				       of conduct.


  2.  The acts of transmission and of  2.
  provision of access referred to in   The acts of transmission and of
  paragraph 1 include the automatic,   provision of access referred to in
  intermediate and transient storage   paragraph 1 include the automatic,
  of the information transmitted in    intermediate and transient storage
  so far as this takes place for the   of the information transmitted in
  sole purpose of carrying out the     so far as this takes place for the
  transmission in the communication    sole purpose of carrying out the
  network, and provided that the       transmission in the communication
  information is not stored for any    network, and provided that the
  period longer than is reasonably     information is not stored for any
  necessary for the transmission.      period longer than is reasonably
                                       necessary for the transmission and
                                       that all necessary steps are taken
                                       to ensure that the information is
                                       not, during storage, accessible
                                       for persons other than the
                                       intended recipient.



                                 Article 13
   
   Caching
   
   Where an Information Society service is provided that consists in the
   transmission in a communication network of information provided by a
   recipient of the service, Member States shall provide in their
   legislation that the provider shall not be liable, otherwise than
   under a prohibitory injunction, for the automatic, intermediate and
   temporary storage of that information, performed for the sole purpose
   of making more efficient the information's onward transmission to
   other recipients of the service upon their request, on condition that:
   
   (a) the provider does not modify the information;
   
   (b) the provider complies with conditions on access to the
   information;
   
   (c) the provider complies with rules regarding the updating of the
   information, specified in a manner consistent with industrial
   standards;
   
  (d)  the provider does not           (d)
  interfere with the technology,       the provider does not interfere
  consistent with industrial           with the technology, consistent
  standards, used to obtain data on    with industrial standards, used to
  the use of the information; and      obtain data on the use of the
  				       information; and
				       
				       [Bem.: Hier liegt offenbar
				       ein redaktioneller Fehler in
				       den provisional minutes vor.
				       Ein Entwurf hat für die
				       Parlamentsvariante die
				       folgende Formulierung:
				       "... use of the information
				       or to protect against
				       infringements; and"]


   (e) the provider acts expeditiously to remove or to bar access to the
   information upon obtaining actual knowledge of one of the following:
   
   - the information at the initial source of the transmission has been
   removed from the network;
   
   - access to it has been barred;
   
   - a competent authority has ordered such removal or barring.
   
                                 Article 14
   
  Hosting
                                      Access and hosting
  1.  Where an Information Society
  service is provided that consists   1.  Where an Information Society
  in the storage of information       service is provided that consists
  provided by a recipient of the      in the provision of access to the
  service, Member States shall        communication network or in the
  provide in their legislation that   storage of information provided by
  the provider shall not be liable,   a recipient of the service, Member
  otherwise than under a prohibitory  States shall provide in their
  injunction, for the information     legislation that the provider shall
  stored at the request of a          not be liable, otherwise than under
  recipient of the service, on        proceedings pursuant to Article 18,
  condition that:                     for the information rendered
                                      accessible or stored at the request
                                      of a recipient of the service, on
                                      condition that:

  (a)  the provider does not have     (a)
  actual knowledge that the activity  the provider does not know, or was
  is illegal and, as regards claims   not in a position to know, that the
  for damages, is not aware of facts  activity is illegal;
  or circumstances from which
  illegal activity is apparent; or

  (b)  the provider, upon obtaining   (b)
  such knowledge or awareness, acts   the provider, upon learning that an
  expeditiously to remove or to       activity is illegal, acts
  disable access to the information.  immediately to remove or to disable
                                      access to the information;

                                      (ba) the provider does not initiate
                                      the transmission and does not
                                      select or modify the information
                                      transmitted;

                                      (bb)  the provider shows that he
                                      has complied with the obligations
                                      imposed on him with regard to
                                      informing the party whose
                                      information is hosted about the
                                      requirement for him to comply with
                                      legislation, particularly on
                                      illegal content, non-pecuniary
                                      personal rights, copyright and
                                      other intellectual property rights.


  2.  Paragraph 1 shall not apply when  2.  The provisions of this
  the recipient of the service is       article shall not apply when the
  acting under the authority or the     recipient of the service is
  control of the provider.              acting under the authority or the
                                        control of the provider.


                                 Article 15
   
   No obligation to monitor
   
   1. Member States shall not impose a general obligation on providers,
   when providing the services covered by Articles 12 and 14, to monitor
   the information which they transmit or store, nor a general obligation
   actively to seek facts or circumstances indicating illegal activity.
   
   2. Paragraph 1 shall not affect any targeted, temporary surveillance
   activities required by national judicial authorities in accordance
   with national legislation to safeguard national security, defence,
   public security and for the prevention, investigation, detection and
   prosecution of criminal offences.
   
                                    Neither shall it affect any
                                    technically feasible and reasonable
                                    measures designed to prevent the use
                                    of illegally provided content.

 				    2a. Paragraph 1 applies under the
                                    condition that, in accordance with
                                    Community law - with particular
                                    regard to Directives 95/46/EC and
                                    97/66/EC of the European Parliament
                                    and the Council -, the relevant
                                    operator takes all reasonably
                                    necessary steps to accommodate and
                                    not interfere with accepted industry
                                    standards used for the
                                    identification and protection of
                                    transmitted material.