Online marketplace – advertisement

• Terms and conditions alone do not determine whether the role of the operator of an online marketplace is a neutral role and thus may qualify to be exempted from liability pursuant to the e-commerce directive (2000/31). One must investigate whether the operator intervenes in the creation, optimisation or presentation of advertisements, or checks the individual content of those advertisements prior to publication. 
   
• An online marketplace platform should be able to reserve a right to use information provided by users of its service while still be deemed neutral and qualify for exemption from liability for hosting advertisement, since the platform is obliged to respond, remove and/or block illegal content in order to be exempted in accordance with the e-commerce directive (2000/31). Such right must not be used in a way that would cause it to cease to be classified as a neutral hosting provider. 
   
• To the extent that the operator of the online marketplace platform is a processor of personal data contained in the advertisements posted on its online marketplace, it should not be required to verify the content of the advertisements posted or to implement security measures to prevent or limit the copying and redistribution of the content of the advertisements published by means of its services. However, appropriate organisational and technical measures must be in place to ensure the security of processing vis-à-vis third parties. 

Russmedia Digital SRL ("Russmedia") is the owner of the online marketplace www.publi24.ro ("Website") on which advertisements for, inter alia, the sale of goods or the provision of services can be published. Advertisement may be published free of charge or for a fee. The issue was that an unidentified person published an advertisement in which the content portrayed that another individual – the appellant in the main proceedings – offered sexual services. 

The Website's terms and conditions stated that Russmedia does not claim any right or ownership over the content that is provided. However, it retains the right to use the content, including by means of copying it, distributing it, transmitting it, publishing it, reproducing it, modifying it, translating it, transferring it to partners and removing it at any time, without the need for any reason for doing so. This renders it possible for Russmedia to take potential and ex post actions in case of illegal content. The Advocate General conclusion is that Russmedia acts as a processor in relation to the processing operations resulting from the publication of the advertisement at issue. When processing personal data of the user advertisers registered on the Website, Russmedia is defined as a data controller.