In the first hosting liability case to reach the French Supreme Court, Tiscali has been held not to qualify as a host of personal web pages stored for its users. However, since the decision relates to the law before it was amended to comply with the EU Electronic Commerce Directive, this does not necessarily put in doubt more recent decisions in favour of hosting providers.
The French Supreme Court ruling of 14 January 2010 confirms the decision rendered on 7 June 2006 by the Court of Appeal of Paris in the “Tiscali Media / Dargaud Lombard, Lucky Comics” case. The appeal court had ruled that Tiscali was liable for unauthorised copies of comics displayed on personal web pages stored by Tiscali for its customer. The author of the pages could not be identified.
The Court of Appeal had held that Tiscali did not qualify for protection under the hosting provider liability regime because, although it was not disputed that Tiscali carried on the technical tasks of a hosting provider, its role was not restricted to the said technical tasks.
The French Supreme Court considered that the Court of Appeal was right to deny the qualification of hosting provider to Tiscali because it offered to web users tools to create personal pages from its website and offered to advertisers the possibility to display, directly on these pages, paid advertising space operated by Tiscali.
Since this decision relates to facts which occurred in 2002, the judges had to apply the law of 1 August 2000. The relevant provisions of this law have since been replaced by the Law of Confidence in the Digital Economy of 21 June 2004, which implements the EU Electronic Commerce Directive.
The wordings of these laws regarding the qualification of hosts are slightly different. On 26 February 2010, the French Secretary of State in charge of the development of the digital economy, Nathalie Kosciusko-Morizet, stated in the on-line journal 01 Net that the Supreme Court decision should not be understood as questioning rulings under the Law of Confidence in the Digital Economy of 2004.
Applying the 2004 law, the Court of Appeal of Paris has, for example, already ruled twice that the French video sharing website Dailymotion is a hosting provider, despite the fact that it operates a commercial activity supported by advertising revenues (Court of Appeal of Paris, 6 May 2009 and 16 September 2009). The next time the French Supreme Court rules on these questions it should be with respect to Article 6 of the Law of Confidence in the Digital Economy, and the issues raised by this first Supreme Court decision on the matter of qualification as a hosting provider should hopefully be answered.