Liablityof HostingServiceProviders

03 April 2002

Christian Rothhahn

On October 22, 2001, the presiding judge of the Tribunal de Grande Instance de Nanterre granted an interim order and on January 23, 2002, the Tribunal de Grande Instance de Nanterre handed down its final judgement in a matter concerning the liability of the hosting services provider in relation to copyright infringement.

In this matter, two hosted Web sites reproduced the image of a French singer, as well as his name and the titles and texts of certain of his songs, without the authorization of the singer or his producers. As the identity of the Webmaster of these two Web sites was not known (he apparently gave false contact information when he subscribed to the hosting services), the singer and his producers sued the hosting services providers, an American company and a French company, claiming damages on the following grounds:

  • The content of the two hosted Web sites constituted a copyright infringement;
  • The two hosting services providers were liable for hosting such unlawful content because they did not verify the content of the hosted Web sites (i.e., whether or not the content was a copyright infringement);
  • The two hosting services providers were also liable for not being able to give the exact identity of the creator of the two hosted Web sites.

Both the presiding judge and the Tribunal ruled that the hosting services providers were not liable and rejected all claims by the singer and his producers against the hosting services companies. The salient points were as follows:

(1) Jurisdiction of French courts

To justify that it had competent jurisdiction over this matter, even though one of the hosting services providers was an American company, the court relied on the fact that the litigious content was downloadable in France.

(2) Hosting service provider liability

The singer and his producers argued that the hosting services providers had been grossly negligent in not verifying the lawfulness of the hosted content. The judge responded to this argument by stating that the mere broadcasting of copyrighted material is not necessarily unlawful, considering the fact that the owner of the copyright might have granted any necessary authorisation to such broadcasting and that there was no such breach of the hosting service providers' obligation of vigilance and caution. Had the judge decided otherwise, this would have obliged any hosting services provider to audit all relevant agreements and licences prior to hosting any Web site, which would be practically and financially impossible.

The judge also made the point that the general terms and conditions of the hosting services providers and the terms of use of the hosting services prohibited any theme, topic or material "containing" any breach of copyright law or of the right any person may have on his image.

Further, both companies had reacted diligently when they were served the writ of summons by the singer and his producers. Indeed, the day after they were served the writ of summons, the hosting services providers suspended access to the relevant Web sites up until the day of the hearing.

It should be noted that the hosting companies' reaction in this matter was more diligent than is required by the law of August 1, 2000, now in force (which was not applicable to this matter, given the date of the facts). Article 43-8 of this law merely requires that a hosting provider promptly suspend access to litigious hosted content only upon injunction of a court, which was not the case here.

(3) Obligation to identify creators of hosted sites

Concerning the fact that the hosting services providers were unable to give the exact identity of the creator of the litigious Web sites, the judge ruled that hosting providers had no obligation to obtain from their customers their correct identity and contact information. The judge's ruling would have been different on this point had the law of August 1, 2000 been in force at the time of the case. Article 43-9 now obliges hosting services providers to hold and conserve any data identifying any person who has contributed to the creation of the content of a hosted service.

Although partially superseded by the law of August 1, 2000, these two decisions of the presiding judge and the Tribunal are quite realistic as to what can be reasonably expected and required from a hosting services provider in terms of diligence, and consequently, of liability.