Constitutional Court: limited responsibility for bloggers in France

By EDRi · September 21, 2011

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Deutsch: [Französisches Verfassungsgericht schränkt Haftung von Bloggern ein |]

The French Constitutional Court decided on 16 September 2011 that the
website administrators (such as editors of blogs or online forums) should
not automatically be held criminally responsible for online comments posted
on their sites. The action was brought to court by a distribution company
against a blog created by one of its franchisees where the mother company
was criticised by the commentators of that blog.

The court’s arguments were that the online editor had no knowledge
beforehand of the content of the comments posted on his site. Also the
commentator may remain anonymous and difficult to trace back. “The
possibility to identify the authors of messages through the communication
data stored by the technical operators is too uncertain to be a guarantee”
said the Court. As the site cannot trace back the comment’s author and
therefore cannot pass on the responsibility, it is therefore unacceptable to
penalise the site editor for messages he was not aware of before

The court also explained that the law on mass-media, that included a
presumption of responsibility for the directors of a publication, would not
apply directly in this new field.

Indeed, previous modifications to the law on audio-visual communications,
included a paragraph that says: “the director or co-editor
of a publication cannot be hold criminally responsible as main actor if it
can be established that he had no knowledge of the message before its online
posting or if, since the moment he has become aware of it, he acted promptly
to withdraw the message”. The law does not say anything about an online
service creator whose responsibility could be engaged in case the message
author cannot be identified.

This interpretation of the Constitutional Court goes on the same principles
applied in February 2011 by the Cassation Court that recognized the hosting
status of several Web 2.0 services stating they were not liable for the
content posted online on their platform, if they had not been appropriately

“This decisions constitutes a much welcome jurisprudence in France”,
commented Meryem Marzouki from French EDRi member IRIS, “however the risk
remains that a future legislation extends the criminal liability of blog
owners for comments and other content generated by third parties on their

Decision French Constitutional Court no 2011-164 (only in French,

Priority Constitutionality Question: a blog creator is not automatically
responsible (only in French, 16.09.2011)

The website producers’ responsibility limited by the Constitutional Court
(only in French, 16.09.2011)

EDRi-gram: The French supreme court recognizes hosting status of Web 2.0
services (23.02.2011)