The Closing of the Net  "original and valuable"  Times Higher Education

Bags- to-bubbly manufacturer LVMH (Louis Vuitton Moet Hennessy) is lobbying the European Commission for  amendments to EU law which will radically threaten the open Internet as we know it. It’s a thinly-veiled  variant on what other rights-holders tried to do with the Telecoms Package.

LVMH wants ISPs  and web hosts to be given a duty of care to take action in cases of alleged intellectual property infringement. It is pushing  an amendment to  the IPR Enforcement directive, which is currently being reviewed by the European Commission.The LVMH amendment would use the law of tort as the legal basis for imposing such a duty on intermediaries. The basic idea of it is:

 The EU Commission’s planned revision of the EU IP Enforcement Directive offers a good possibility to further clarify the role of online sales platforms and other intermediaries by introducing the principle of Duty of Care.  Such a Duty would – in line with the judgment –oblige intermediaries that create or control a dangerous situation to take any reasonable measures to prevent damages to third parties.

 What’s concerning about the LVMH proposed amendment is its breadth. It does not just cover copyright, but all forms of IP. It does not just cover online – LVMH brags that it covers offline as well, and could  impose liability on companies shipping physical goods.

The idea of giving ISPs such  a duty first appeared in the Telecoms Package (see my book The Copyright Enforcement Enigma). This looks like a reprise.

 It would seem as though LVMH want to use tort law, inserted into copyright law,  to avoid the difficulties of amending telecoms law. 

 The effect of the LVMH amendment would be to over-ride the mere conduit provision. Mere conduit  not only absolves ISPs of liability for content, but  protects the right to free speech on the Internet. The LVMH amendment  would force a reversal of the principles of open communication on which the Internet is built, creating a back-door obligation for  ISPs to monitor traffic and block content.

The LVMH amendment  is also very clearly targetting eBay, forcing the auction site  to police sellers and potentially forcing some sellers out of business.

 If my information is still correct, the LVMH lobbyist used to work for eBay, and  no doubt she now carries a nice expensive handbag.  How paper-thin are  the loyalties of those lobbyists!

 The European Commission and  Parliament should seek independent and impartial advice, and beware whose champagne they drink.

 However, I fear the  worst.



The proposal for the LVMH amendment to the IPR Enforcement directive is based on the following:


We propose to use this article as basis for introducing a Duty of Care for intermediaries in the IP Enforcement Directive.

The provision should be drafted on the basis of the following 5 key principles:

A Duty of Care should be imposed for intermediaries that create or control a dangerous situation

Such Duty should entail any reasonable measures to prevent damage to the intellectual property of third parties

The Duty should take into account the business model of the intermediary, adjusting the level of Care to the type of service the intermediary is providing

The Duty should be measured against the seriousness of the harm on the one side and the ease of avoiding the damage on the other side

 The breach of that Duty should give rise to shared liability for the IP infringement and entitle the right holder to claim damages from the intermediary that has breached it



To find out more about copyright,  ISP liability and  the Telecoms Package, see my book

The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'

Please cite this article: Monica Horten ( 2011) IPRED  alert – LVMH takes pop shot at ISPs, 27 October 2011







The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

Read more  

Ask your library to get it!

Order direct from the publisher.

Go to   Amazon

Copyright Enforcement Enigma launch, March 2012

European Parliament launch for Copyright Enforcement Enigma

Don't miss Iptegrity!  RSS/ Bookmark is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

Contact  me to use  iptegrity content for commercial purposes