More cases, more confusion? The continuing saga of internet hosting provider liability under French law

17 December 2007

Jeanne Méhaud

A spate of recent cases on the liability of internet hosting providers in France is currently causing a lot of ink to flow. New court decisions are being published on a regular basis but they often appear contradictory, failing to clarify the exact legal regime in France. During October 2007, decisions involving Google Video and Wikipedia were the latest to attempt to deal with this thorny issue.

Under French law, a distinction is made between website publishers, who are fully liable for the content they publish online, and mere hosting providers, who may benefit from a legal limitation of liability. Article 6-I-2° of the French Law on Confidence in the Digital Economy provides that a hosting provider “may not be liable, whether under civil or criminal liability, for the stored activities or information, unless it was aware of their unlawful nature (or of facts and circumstances pointing to such nature) or if, as soon as it became aware of this, it did not take prompt action to withdraw the information or to prevent access to such information”. However, failure to properly comply with the take-down requirements can give rise to criminal sanctions of up to one year imprisonment and a €75,000 fine (or up to a €375,000 fine for companies).

Therefore, judges hearing cases in respect of the liability of internet service providers must answer two questions. First, they must determine whether the defendant is a hosting provider for the web service it operates. Second, they must then rule on whether or not the hosting provider met the take-down requirements under Article 6-I-2° in order to be able to escape liability.

The Google case - withdrawing protected works from Google Video

In the Google case, Zadig Productions claimed damages from Google for illegal use of protected works that users had posted on the Google Video website. Google had removed the videos concerned from the site four times between April 2006 and May 2007, and each time it had done so within a few days of the claimants’ notifications of copyright infringement. Nevertheless, Zadig claimed that, once it had been informed of the unlawful nature of the posting, Google was responsible for monitoring the Google Video website for any further postings of the same content.

Google held to be a hosting provider for Google Video

In its decision of 19 October 2007, the Paris Court of First Instance ruled that Google, in respect of its Google Video website, is not a content publisher but merely a hosting provider, as the video contents are provided by users. The court considered that the fact that Google Video offers its users an architecture and technical means for classifying video content is not sufficient for Google to be regarded as a website publisher, as such classification is necessary to make the content available to the public.

This is in line with the previous decision of the court on 13 July 2007 with respect to the Dailymotion website (see our IT & E-commerce Law Bulletin - October 2007)

Google found liable for failure to monitor repeated posting of unlawful content

Google had acted promptly to withdraw infringing video from Google Video each time it received a notification from Zadig. However, the infringing video was re-posted by users on three more occasions.

The court considered that Google could only benefit from the limitation of liability under Article 6-I-2° on the first occasion that unlawful video content was put online, notified and withdrawn, but not for the following acts of withdrawal. According to the judge, as Google had been informed of the unlawful nature of the content by the first notification, it should have implemented any and all means necessary to prevent the content being posted on Google Video again. The court held that Google failed to prove it had done this, as the alleged development of technical devices in order to prevent, or at least limit, infringement by third parties was regarded as ineffective.

This decision drastically restricts the scope of the limitation of liability offered by Article 6-I-2° and places a heavy burden on hosting providers to maintain sophisticated systems for ongoing monitoring of content posted by users.

The Wikipedia case - withdrawing defamatory statements from Wikipedia

The Wikipedia case involved allegedly defamatory statements posted on Wikipedia’s online encyclopedia service. The claimants, three individuals, objected to remarks made about their private lives that had been posted on the Wikipedia website. They notified Wikimedia Foundation Inc and requested that the statements be withdrawn from the website. When Wikimedia failed to remove the remarks, the claimants referred the case to the summary judge of the Paris Court of First Instance, on the grounds of Article 6-I-8° of the French Law on Confidence in the Digital Economyin order to obtain the withdrawal of the defamatory remarks. Wikimedia removed the defamatory statements as soon as it received the claimants’ writ of summons, prior to the summary hearings.

Wikimedia held to be a hosting provider for Wikipedia

The summary judge of the court considered that Wikimedia, through the operation of its Wikipedia website, was a hosting provider.

Wikimedia found not liable for failing to remove defamatory statements

The summary judge rejected the claim and ruled that hosting providers are not under any general monitoring obligation. He considered that the notifications sent by the claimants by email to Wikimedia did not provide sufficient information, as required by Article 6-I-5° of the French Law on Confidence in the Digital Economy. In particular, the notifications did not contain a description of the facts of the dispute or the claimants’ reasons for requesting the withdrawal of the remarks, nor any indication of the legal provisions and facts upon which the claimants’ relied. The claimants also failed to provide evidence of Wikimedia’s receipt of one of the notification emails.

The judge concluded that Wikimedia could not be aware of the defamatory nature of the remarks, particularly considering their private personal nature. As Wikimedia withdrew the statements as soon as it received the claimants’ writ of summons and prior to the summary hearings, the judge considered that Wikimedia acted promptly, as soon as it had been clearly and unequivocally aware by the claimants’ writ of summons and of the fact that they were disputing the lawful nature of the remarks regarding their private life.

This decision should be regarded with caution, as it was not decided fully on the merits but in the framework of summary proceedings, requiring the judge to rule on obvious facts.

Conclusion

While French case law regarding the legal status of hosting providers is far from being clearly settled, it appears that, for the time being, companies operating websites upon which contents are actually provided by its users should be considered as hosting providers and not web content publishers. However, the question of liability for content will still turn on the particular facts of a case.

It is worth noting that the French CSPLA, the superior advisory committee on intellectual property issues, has been requested by the French Minister of Culture to issue an opinion on whether internet access providers and hosting providers should be liable for the content they carry or host. A report on this is due for spring 2008.