The French supreme court recognizes hosting status of Web 2.0 services

By EDRi · February 23, 2011

This article is also available in:
Deutsch: [Französisches Höchstgericht bestätigt Hosting-Status von Web 2.0 Diensten |]

On 17 February 2011 the French Court of Cassation recognized the hosting
status of Dailymotion and The court also confirmed, in relation to
the Amen website case, that the judges had to verify that the content
withdrawal requests observed the requirements of LCEN (loi pour la confiance
dans l’économie numérique – French implementation of the EU E-commerce
Directive) before condemning a hosting site that had not withdrawn promptly
the notified content.

The decisions of the Court of Cassation establish clearly the boundary
between a content hosting site and a web service editor. In the Dailymotion
case, it comes to confirm the decision of the French Court of Appeal of May
2009 which overturned a 2007 court decision that considered the hosting site
liable for the content posted online on its platform. Moreover, the site had
responded immediately after having been notified that it was hosting illegal

The Court of Cassation also overturned the decision against in
the case introduced by actor Olivier Martinez. In 2008, a French court
decided that the owner of the website had an editorial responsibility, even
if the website was a digg-like service (where the users can vote which news
comes on first) and forced him to pay 1000 euro in damages for infringing
the actor’s privacy and an additional 1500 euro in legal fees. The Court of
Cassation considered a hosting site in terms of LCEN and therefore
not liable for the content posted on it.

An important clarification in relation both to Dailymotion and the Amen
hosting site is the necessity to correctly formulate the requests for
content withdrawal by taking all actions stipulated by the law.

According to LCEN, the request to withdraw content must cover a
series of elements including the notification date, the identification
data of the notifying person (either natural or legal), the identification
data of the addressee, the description of the litigious facts and precise
location, the reasons for the withdrawal, including legal basis and
justification, , a copy of the correspondence addressed to the author or
editor of the litigious actions asking for their interruption, withdrawal or
modification, or the justification of the fact that the author or editor
could not be contacted.

The subsidiarity principle is thus observed, meaning that a hosting site
cannot be required to withdraw content before proving that the author of the
content has been first contacted and required to withdraw the respective
content. This could be the end of mass withdrawals of files without any
previous procedure.

However, the Legal Commission of the Senate seems to want to change the
rules and on 15 February 2011 it proposed the creation of a new status
between hoster and editor that will have filtering and surveillance

Dailymotion and Fuzz recognised as hosters by the Cassation Court (only in
French, 17.02.2011)

The Cassation Court saves service as well (only in French,

The Cassation Court protects the hosting status of Dailymotion. Thanks
Hadopi ? (only in French, 17.02.2011)

The assignees will not be able to withdraw mass contents (only in French,

The Senate proposes the creation of web service editor status (only in
French, (16.02.2011)

EDRi-gram: French courts give clear decisions for hosted content