On March 19 2015 the Paris Court of First Instance ruled on an interesting case regarding hosting provider qualification and hyperlinking case law in the context of online piracy of live television broadcasting.

Facts

Rojadirecta is a website operated by Puerto 80, a Spanish company, whose model involves the provision of hyperlinks leading to free live streaming of sporting events without authorisation from the broadcasters or rights holders. Such hyperlinks are posted by users on the website www.rojadirecta.me (or '.es'). Each hyperlink leads to a page, also hosted on the website, which embeds a video player from a third-party website from which the sporting event is currently streaming.

By law, the French football league association, the Ligue Professionnelle de Football (LFP), has the exclusive right to sell the broadcasting rights for French footballing events (Article L 333-2 of the Sport Code). The LFP found that Rojadirecta hosted and displayed hyperlinks through which the live broadcasting of French football games was freely made available to internet users without authorisation. Although the LFPissued a takedown notice during the game, Puerto 80 did not remove the targeted links before the end of the broadcast.

In this context, on November 14 2014 the LFP brought a claim against Puerto 80 based on the company's liability as publisher of the website. Puerto 80 argued that as a mere hosting provider, it should not be held responsible for the content generated by users of its service.

The LFP brought the action on the grounds of civil law liability rather than IP rights, since it was entitled to take action in order to protect the value of the broadcasting rights over French footballing events.

Decision

The Paris Court of First Instance first ruled that since the website was accessible in France, French law applied and the French courts had jurisdiction to rule on the damage caused in France by the Spanish company. This is in line with recent European Court of Justice case law (Pinckney, Pez Hejduk), as well as French case law (Court of Cassation, January 22 2014).

The court also took an interesting approach in examining the actual role of the website operator. It is now established in both French and EU case law that a hosting provider loses the benefit of the safe harbour – as implemented into French law in 2004 under the EU E-commerce Directive – when it plays an active role such that it has knowledge of or control over the content hosted on its website.

In this case the court noted that the website operator enabled the making available of content exclusively dedicated to sporting events, and that it hosted, organised and displayed hyperlinks in a logical manner (both chronologically and sorted by sport categories), along with a search engine. According to the court, such service implied knowledge of and control over the content; therefore, Puerto 80 bore editorial responsibility for Rojadirecta and it could not qualify as a hosting provider.

The fact that only hyperlinks and embedded video players from a third party's website were hosted on the website was irelevant to the court, even though Puerto 80 had argued that it did not broadcast any programmes itself.

As a consequence, the court ordered Puerto 80 to remove any content (including hyperlinks) making available French football games and granted the LFP €100,000 in damages.

Comment

The French court's ruling is a turnaround, given that in 2010 a Spanish court decided that Rojadirecta was not infringing rights or conducting any illicit activity.

Puerto 80 is to appeal the ruling.

For further information on this topic please contact Loïc Fouquet at Nomos by telephone (+33 01 43 18 55 00) or email (lfouquet@nomosparis.com). The Nomos website can be accessed at www.nomosparis.com.

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