A large number of significant judicial decisions have been made by French judges in the past few months relating to Web 2.0. These decisions tackle various issues relating to the liability of companies who provide hosting services on the internet. They consider what type of service provider will be a host under the French Act on Confidence in the Digital Economy, and consider how that legal regime operates in practice. Since the Act implements the intermediary liability provisions of the EU E-Commerce Directive, the decisions are of broad interest throughout Europe.
From the decisions given so far, it appears that that the French Courts will adopt a wide interpretation of “hosts” under the Act. However, the courts seem reluctant to limit the hosts’ liability, interpreting the Act strictly.
A wide interpretation of the notion of “hosting” under the Law on Confidence in the Digital Economy
Who is deemed to be a host?
It is accepted that the favourable legal regime applying to “hosting” applies to ordinary web-hosting businesses.This was stated in a recent decision of the Toulouse Civil Court on 13 March 2008 (Krim K. v. Pierre G. and Amen).
In a number of recent cases in the Paris Civil Court, the concept of hosting under Article 6-I-2° of the Act was applied to User Generated Content platforms such as YouTube and Dailymotion. (E.g. the four cases in which R. Magdane and R. Mezrahi, two French humorists, had sued YouTube and Dailymotion, 9 January 2008).
Google was also considered to be a host with respect to its Google Video service (Flach Films v. Google France and Google Inc Commercial Court of Paris on 20 February 2008.). The Court’s view was that users of Google Video service are responsible for the content they provide for many reasons. The following factors were significant for the court:
the aim of the Google Video service is to allow providers of video content to download the content onto Google’s servers in order for them to be broadcast to the public;
users themselves choose the content they elect to broadcast, they classify the content depending on its nature and define the broadcasting criteria, and
The criteria applied by the Commercial Court of Paris on this issue are quite similar to those applied in other recent decisions regarding UGC platforms, i.e. the Dailymotion decision of 13 July 2007 and the Zadig decision of 19 October 2007 and it follows these decisions.
Other recent cases have considered this issue in the context of other internet services. The Paris (on 14 November 2007, Mrs. B. v. Aufeminin.com) and Versailles (on 12 December 2007, Les Arnaques v.Editions Régionales de France) Courts of Appeal both considered that providers of newsgroups that have only an limited moderation or no moderator at all will be considered to be hosts, as they store messages without moderating the messages posted. In its decision, the Versailles Court of Appeal indicated that the Act “provides for a liability regime specific to hosting providers in order to encourage the development of exchanges over the internet to avoid that, by reason of a legal risk, hosting providers be led to excessively censor statements, information and discussions that they host, in order not to be held liable”.
Google was also considered to be a host with respect to ‘Blogger’, its free blog hosting service, in a decision of the Paris Court of Appeal of 12 December 2007 (Google Inc. v. Benetton Group and Bencom). This was on the basis of technical criteria. According to the Court of Appeal, the fact that Google offers, through the Blogger platform, an implementation or presentation functionality, or a system of protection against undesirable comments, is not sufficient for Google to be considered to publish the content of the blogs.
Under what circumstances are websites considered by the Court to be publishers, not hosts?
In some decisions however, there seems to be a move away from seeing websites displaying syndication feeds or hyperlinks (such as “Diggs”) as hosts. Two recent summary decisions on this issue are the subject of much debate in France. In the first case (Olivier Dahan v. Eric Duperrin), the director of the movie “La vie en rose” sued the owner of a website that re-ran contents from other websites that were displayed through syndication feeds (i.e. the title and introductory paragraph of an article published in an online tabloid). His view was that the syndication feeds contained information that were violating his right to private life. The Nanterre Civil Court, in a summary order of 28 February 2008, ruled that by subscribing to the syndication feeds and by combining them according to a precise and pre-established layout, the defendant clearly was a publisher, as he had carried out editorial choices. As such, Mr. Duperrin was ordered to pay €800 to the claimant in compensation for the damage caused to him as a result of the breach to his privacy.
The Paris Civil Court went further in its summary order of 26 March 2008 (Olivier Martinez v. Bloobox Net). French actor Olivier Martinez has sued about 20 websites for circulating a rumour relating to his relationship with the singer Kylie Minogue, considering that this violated his right to private life.
On the defendants’ website, “www.fuzz.fr”, comprised of several sources of information, users could follow hyperlinks to various websites that originally published the information. The judge considered that by including hyperlinks and by combining various headings with related information, the defendant had carried out an editorial choice and decided on the organisation and presentation modes of the website. The court’s view was that publication is not a mere material act, but rather the willingness to bring the public into contact with messages of its choice. As such, Bloobox Net was held to be a publisher and ordered to pay €1,000 in damages to the claimant in compensation for the moral prejudice sustained as a result of the privacy breach.
This decision is significant because on “Diggs”, news stories and hyperlinks are not originated by the website, but submitted by users and then promoted to the front page depending on a user-based ranking system. The defendant elected to shut down the litigious website “www.fuzz.fr” on the day of the hearing.
The impact of such decisions will be tempered by the fact that both these decisions were summary orders in matters considered as being of special urgency, and were not considered on the merits of the cases.
A strict interpretation of the legal regime granted to hosting providers
Pursuant to article 6-I-2° of the Act, a hosting provider may not be liable under civil liability for the stored activities or information, unless it was aware of their unlawful nature or of facts and circumstances pointing to this unlawfulness. Alternatively it will be liable if it did not take prompt action to withdraw the information or to prevent access to such information as soon as it became aware of it.
The notion of “prompt action”
While the concept of who should be a host is defined widely, the French Courts are still reluctant to grant such hosts the benefits of the Act. The conditions, under which a host may escape from liability, are interpreted strictly. The concept of “prompt action” is interpreted especially strictly.
In Google v. Benetton (12 December 2007), the Paris Court of Appeal ruled that Google was liable for unlawful contents displayed on a blog hosted on its Blogger service, during a period when legal action was being taken (between the communication of the exhibits supporting the writ of summons until the day of their withdrawal). Hosts are required to promptly take action and cannot wait for a court decision to withdraw the contents. Google was therefore ordered to pay a provisional sum of €15,000 euros in compensation of the damage incurred by Benetton.
The same approach was adopted by the Civil Court of Toulouse in its decision of 13 March 2008 (Krim K. v. Pierre G. and Amen). The judge stated that the hosts had been aware of contents violating the claimant’s privacy through a registered letter sent on Thursday 7 February 2008 and delivered on Friday 8 February 2008. The defendant could not use the fact that his company was not in operation over the weekend to justify the fact that the contents had only been withdrawn on Tuesday 12 February 2008. In order to be considered as “prompt” the withdrawal should have occurred, according to the judge, on the day the notification was delivered. The defendant was ordered to pay a provisional sum of €6,000 as compensation for the damage suffered by the claimant.
The conditions of a proper “notification”
French judges require unlawful contents to be adequately notified to hosts by claimants. Under article 6-I-5° of the Act, hosts’ awareness of the litigious contents is presumed if they receive a notification which contains a description of the facts, the precise location of the information and the reasons for the withdrawal request, including an indication of the legal provisions and factual motives.
French Courts generally refuse to consider that wide, vague and general notifications are valid under the Act, whether in cases of defamation (Les Arnaques v. Editions Régionales de France) or infringement (four cases R. Magdane and R. Mezrahi v. YouTube and Dailymotion).
In the R. Magdane and R. Mezrahi v. YouTube and Dailymotion cases, the summary judge dismissed the claims of both comedians against both UGC platforms and ruled that “article 6-I-5° of the Law explicitly provides that a web user who wishes to put an end to the broadcasting of a content he considers as violating his rights, must send the hosting provider a request that clearly identifies the litigious videos, so as to allow the company which is merely aimed at storing and broadcasting these works to identify them in the spate of documents broadcasted, and to withdraw them. The web user must describe the litigious facts and give their precise location, as well as the grounds for the withdrawal of said content, including the indication of the legal provisions and of factual justifications”.
In two decisions on the merits of Lafesse v. Google and Lafesse v. Dailymotion (18 December 2007), the Paris Civil Court also dismissed the claims brought by French comedian Lafesse against Google and Dailymotion for sketches available to the public on their platforms of UGC. Judges considered that the claimant had failed to specify which videos displayed on the website were violating his rights and which of his works were actually infringed by the litigious videos. The Court ruled that “it does not suffice to allege an infringement of works on which one claims rights, as one must specify, by naming, numbering and identifying, the works upon which one claims authorship in order to justify one’s quality and interest to act”.
Thus, while hosting providers are required by French Courts to promptly take action once the presence of unlawful contents is brought to his attention, judges consider that unlawful content must be properly notified to them and that a mere indication that a large number of videos are infringing cannot suffice.
In Zadig v Google the court held that once notified of an infringement the host, even if it had taken down the original content, could not obtain hosting protection in respect of subsequent postings of the same material, including by a different user.