French courts give clear decisions for hosted content

By EDRi · May 20, 2009

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Deutsch: [Französisches Gericht trifft klare Entscheidungen bei gehosteten Inhalten |]

Several decisions taken by the French courts lately recognize the principle
of non-liablilty of some web 2.0 sites for the content hosted. The new
interpretation is putting things back on track, after some earlier strange
decisions of the lower courts.

Dailymotion, the French video sharing site, has recently benefited of three
decisions in its favour, in each case the site being considered as a mere
hosting site and thus not liable for copyright infringement. On 30 April
2009, the site was cleared in the case filed by comedian Roland Magdane and
his production company Matex, for illegal video sharing of 31 sketches and
unfair competition. The court decided the site was only a hosting site, the
respective videos having been posted on personal users’ accounts.
“Dailymotion offers its users an architecture and the technical means
allowing a classification of contents, availability to these contents,
without a prior intervention of the company on these contents that are
supplied by its users who bear their sole responsibility, independently from
the host which is in no way (…) an editor” was the decision of the court.

In April 2008, Dailymotion was also brought to court by production companies
Davis Films, Davis Films Productions, Nouvelles Editions de Films on the one
side and distributor Metropolitan Filmexport on the other for illegal
sharing of movie Le Parfum. The plaintiffs contested the hosting status of
the site considering Dailymotion had an active role in the treatment of the
contents, the classifications being made on commercial criteria and not on
functional or technical ones. Also, the plaintiffs considered that the
notification stipulated by LCEN for the warning of a site on allegdly
illegal hosted content was not mandatory.

However, the court decided Dailymotion was simply a hosting site as users
are those posting contents and choosing the key words. It also ruled that
the notification of illegal content was definitely mandatory. Dailymotion
was therefore exonerated of any guilt and the plaintiffs are to pay 10 000
euros as legal expenses.

In another case, the site was condemned on 13 July 2007 for counterfeiting
by the High Instance Court of Paris for illegally sharing online the movie
“Joyeux Noël” and required to pay damages to the producers and the
exploitation company. At that time, the judges, although acknowledging
DailyMotion as a hosting provider and not a publisher, decided however that
the site was liable for copyright infringement, as it was aware of the
presence of illegal contents on its site. But on 6 May 2009, the appeal
court of Paris confirmed the hosting status of Dailymotion cancelling the
previous financial sanctions.

The major online auction site eBay had its share of French trials. Thus, in
september 2007 it was taken to court by l’Oreal cosmetic company in France,
Belgium, Spain and UK under the accusation of allowing counterfeit goods to
be traded and asked for about 3.5 million euro in damages.

In August 2008, eBay was already cleared of accusations in Belgium. In UK a
verdict on the matter is expected soon while in Spain the matter has not yet
been heard. The French court decided that the auction site is only a hosting
site as defined by the French law on implementing the e-commerce directive
(LCEN – loi pour la confiance dans l’économie numérique) and not an editor
and therefore it is not liable for the content on its website. The court
also considered that eBay has put into force significant means to fight
against online counterfeiting and thus “fulfilled its obligations of loyalty
to other operators on the market.”

The court has also asked both parties to closely collaborate in order to
find adequate measures to fight counterfeiting perfumes and cosmetics and
suggested a mediator between the two, a hearing being scheduled for 25 May
on the issue. L’Oréal accepted the decision and welcomed the mediation
solution. In its turn, eBay was pleased with the outcome considering the
fight against counterfeiting should be a shared responsibility and the
various involved parties should work together in this matter.

Dailymotion escapes two convictions in ten days (only in French, 11.05.2009)

Counterfeiting : L’Oréal dismissed in its pursue of eBay (only in French,

Judge sides with eBay in L’Oreal fake goods case (13.05.2009)

EDRi-gram: France: Linking can be damaging to your pockets (9.04.2009)

EDRI-gram: France considering new rules for web 2.0 (23.04.2009)