French courts rule that Internet Service Providers must pay compensation to customers for poor or disrupted service

17 December 2007

Sandrine Rambaud

In two separate cases in the First Instance Courts of Paris and Cherbourg, internet service providers have been found liable for compensation to customers experiencing disrupted internet access or inadequate support services.

The French courts have seen a recent spate of litigation between internet service providers and their customers. The customers have been seeking compensation for disruption to internet access and problems with services such as technical hotlines and onsite support. The defence put forward by the internet service providers has been that information about service disruption is provided and that the hotline services offered are adequate. In addition, they argued that the problems were caused at the local loop provided by France Telecom.

In their decisions of 26 June and 12 July 2007 respectively, the First Instance Courts of Paris and Cherbourg stated that internet service providers are bound by an “obligation of result” and have ordered both defendants to compensate the claimants for damages suffered.

The courts based their decisions on the basis of Article 15 of the Trust in Digital Economy Act of 21 June 2004 which provides that any individual or company proposing or ensuring online provision of goods or services is strictly liable to the purchaser for the proper performance of its contractual obligations, even if these obligations are to be performed by other service providers. The Court of Cherbourg also stated that a contractual provision pursuant to which the customer has to prove that the service provider has not taken sufficient steps in order to reach the agreed result is an unfair term under French law and not enforceable. The defence based on the problems having been caused by France Telecom failed because France Telecom was not a third party but a sub-contractor to the defendants.

Therefore, these cases hold that an internet service provider in France will be liable for compensation for poor or disrupted service unless it can establish that the non-provision of the service is due to a fault of the claimant, a fault of a separate third party or a force majeure event.