The Paris Court of Appeal has confirmed that Dailymotion is a hosting provider despite the fact that its commercial activities are supported by advertising revenues.
A group of French comedians sued Dailymotion for infringement of their intellectual property rights due to the posting of their creations by web users on Dailymotion websites. The comedians argued that Dailymotion should not be considered as a hosting provider because it sells advertising spaces on its website whose prices are determined by taking into account the website’s viewing figures.
On 14 April 2010, the Paris Court of Appeal rejected this argument and ruled that Dailymotion is a hosting provider under the Law of Confidence in the Digital Economy of 2004 (which implements the EU Electronic Commerce Directive), even though Dailymotion earns revenue from its advertising spaces. The Paris Court of Appeal added that Dailymotion would only not be considered a hosting provider if the commercialisation of the site implied a capacity of action on the posted content (which might be the case for example if the website owner were able to determine the type of advertisement by taking into account the type of content posted). However, the Court of Appeal also considered that Dailymotion had nonetheless breached its hosting provider obligations because it did not promptly remove the concerned content and therefore ordered Dailymotion to pay EUR10,000 to each claimant.
This decision is consistent with similar decisions of the Paris Court of Appeal on 6 May 2009 and 16 September 2009.
However, on 14 January 2010 the French Supreme Court ruled that the Court of Appeal was right not to treat Tiscali as a hosting provider because it offered tools to web users to create personal pages from its website and offered advertisers the opportunity to display paying advertising space operated by Tiscali directly on those pages.
Our view was that this decision is explained by the fact that the French Supreme Court had to apply the law previously in force and not the Law of Confidence in the Digital Economy of 2004 (see our report in the Lucky Comics hosting liability case). This more recent decision seems to confirm that analysis, although that will have to await a decision of the French Supreme Court on the 2004 law.