The Dailymotion case: a tough decision for Internet hosting providers?

24 October 2007

Julie Ruelle

Dailymotion is a free-of-charge website allowing internet users to host, store, upload and comment upon their personal videos. In April 2007, the director and the producer of a French film entitled “Joyeux Noel” sued Dailymotion on the ground of copyright infringement because their film was accessible on Dailymotion’s website.

In a decision dated 13th July 2007, the Tribunal de Grande Instance of Paris ruled that Dailymotion, while considered to be a hosting provider, was liable for providing internet users with the means to commit copyright infringement.

In attempting to escape liability, Dailymotion relied on Article 6.I.2 of the French law “on Confidence in the Digital Economy” (dated 21st June 2004) under which hosting providers “may not be held civilly liable for the activities or information stored at the request of a recipient of these services if they are effectively unaware of the illegal nature thereof or of the facts and circumstances revealing this illegality or if, as soon as they become aware of them, they have acted promptly to remove these data or make access to them impossible”. This implements the hosting protection provisions of the EU Electronic Commerce Directive. Dailymotion argued that it had complied with this provision and had no obligation actively to seek out illicit activity.

In opposition, the claimants argued that Dailymotion should be considered not as a hosting provider but rather as a publisher and should therefore be held liable.

In its ruling, the Tribunal de Grande Instance of Paris first held that Dailymotion was not the publisher of the content at stake because it did not cause the publication of the film on its website, the internet users themselves having provided the content. Therefore, the Tribunal de Grande Instance held that Dailymotion was a hosting provider, despite the fact that Dailymotion operated a commercial activity supported by advertising revenues. This ruling, while favourable to user generated content platforms, is contrary to earlier cases where such activity has been accepted by French courts as excluding the application of Article 6.I.2 of the Law on Confidence in the Digital Economy and enabling the person to be described as a publisher.

However, in spite of its finding that Dailymotion was not a publisher, the Tribunal de Grande Instance held that Dailymotion had still acted unlawfully in providing internet users with the means to commit copyright infringement. Indeed, the Tribunal de Grande Instance considered that the success of Dailymotion’s website depended upon the broadcast of famous works because, according to the judge, these works captured larger audiences and ensured greater advertising revenues. Moreover, the court specified that even if there is no general obligation for hosting providers to actively seek out illegal activities, this limitation does not apply where these activities are created or induced by the provider.

Consequently, according to the judge, Dailymotion, being necessarily aware of the illegal contents, had therefore the obligation to carry out a prior control on the content. Dailymotion, having failed to meet this control obligation, was held liable. This decision could be seen as applying a relatively low knowledge threshold in order for the hosting protection to be disapplied, and thus as a harsh decision against hosting providers.

Dailymotion has lodged an appeal against this decision.