French Supreme Court: Important rulings for intermediary liability

By EDRi · July 18, 2012

This article is also available in:
Deutsch: [Frankreich: Wichtige Entscheidungen in Sachen Providerhaftung |]

On 12 July 2012 the French Supreme Court (Cour de Cassation) issued four
important and somewhat contradictory rulings regarding the role of
online service providers in policing online copyright infringements.

In the first case, SNEP vs. Google France, the Court’s decision could
lead the search engine to censor its autocomplete feature which
automatically suggests commonly-used terms associated with the queries
submitted by users. The French phonographic industry lobby (SNEP) had
sued Google for providing the suggestions “Torrent”, “Megaupload” and
“Rapidshare” when users typed the names of artists or music bands in the
Google search bar.

Both the Court of First Instance and the Appellate Court had rejected
SNEP’s demands that Google stop suggesting the names of these online
services. They insisted that the latter were not illegal in
themselves, even though they could be used to infringe copyright. As a
consequence, they claimed that SNEP’s rights were not affected by
Google’s service, and that the company could not be held liable for such
“potentially infringing uses”, nor be forced to censor its automatic

But the Supreme Court overturned these rulings, rejecting the lower
courts’ legal reasoning. The judges held that Google’s autocomplete
feature actually “provided the means to infringe copyright and related
rights”, and that the measures required by SNEP, while not being totally
effective, could in fact “prevent or terminate such infringements”. The
case is now referred back to a lower court to be judged once again.

Interestingly, this ruling comes six months after Google decided to
voluntarily remove “Rapidshare”, “uTorrent” and “MegaUpload” from its
Google Suggest service. However, according to the SNEP’s executive
director, David El Sayegh, Google must do more in the fight against
file-sharing. “This ruling demonstrates that search engines must
participate in the regulation of the Internet”, said El Sayegh. As a
result of this decision, Google will be under increased pressure to come
to a settlement with rights-holders organisations.

In three other separate but similar rulings, the Supreme Court upheld
the rights of Internet users and service providers against the
right-holders’ claims. The Court’s decisions in these cases mark the end
of “notice and staydown” injunctions in France, which were becoming
increasingly popular in Court rooms. In all three cases, the appeal
court had ruled that Google did not adopt adequate measures to prevent
the re-indexation of videos or images that rights-holders had previously
notified as infringing and which Google had then promptly removed. Such
rulings would have eventually forced Google to monitor its users’
activities and filter-out uploaded content, so as to prevent any of its
users from publishing content that has already been notified and
taken-down (hence the term “notice and staydown”, as opposed to the
traditional “notice and takedown” regime).

Through its decision, the Supreme Court rejected the notion that online
service providers are under the obligation to prevent any future
infringements. According to the Court, the three appellate rulings
violated EU and French law by imposing “a general obligation to monitor”
the content that Google stores, as well as to actively “seek illicit
uploads”. These decisions would have led Google to implement a “blocking
mechanism with no limitation in time”, which would be “disproportionate
to the pursued aim”, the Court said. Whereas the EU Court of Justice
recently rejected blocking measures based on five cumulative criteria in
the Netlog vs. SABAM case, the French Court deems that the “no
limitation is time” criterion is enough to qualify blocking measures as

These rulings against “notice-and-staydown” will bring clarity to the
ongoing debate on the future of the EU e-commerce directive and the
dangers of blocking measures. However, when considered together with the
decision on Google’s autocomplete feature, this mounting case law will
unfortunately encourage rights-holders to keep on pushing for closer
“cooperation” of online service providers in copyright enforcement,
thereby leading to privatised censorship schemes.

French Supreme Court decision – SNEP vs. Google France
(only in French, 12.07.2012)

French Supreme Court decisions – Bac Films vs. Google France and Inc (1
& 2) (only in French, 12.07.2012)

French Supreme Court – André Rau vs. Google & (only in
French, 12.07.2012)

France: Google may have to censor for piracy after all (16.07.2012)

Music: Google’s suggestions (once again) in front of the judges (only
in French, 13.07.2012),15038.html

The Supreme Court opposes content blocking by hosting companies
(in French only, 18.07.2012)

(contribution by Félix Tréguer – EDRi-observer La Quadrature du Net)