In this judgment dated 19th March 2015, the French tribunal de grande instance de Paris ruled upon the description of the operator of a website, in accordance with article 6-I-2 of the French law for trust in the digital economy (loi pour la confiance dans l’économie numérique) dated 21st June 2004.
In accordance with article L.333-1 of the French Code of sport (code du sport), the French professional football league (ligue professionnelle de football) has exclusive live broadcasting rights in relation to football championships.
The league noted that a company named Puerto 80 was operating a website giving access to the free broadcasting of sporting events exclusively, thanks to a sport calendar containing series of hyperlinks making it possible to watch matches, including those in respect of which the league holds exclusive rights, either live or slightly deferred.
So, the league first asked Puerto 80 to remove the disputed hyperlinks. Then, the league took legal action against the company.
In order to make a decision on the alleged infringement of the league’s rights, the court assessed the company’s role in the operation of its website.
The court began with quoting the article 6-I-2 of the law for trust in the digital economy, which relates to the capacity as a web host. Contrary to the web host’s role, the editor’s role can be defined as the role of someone having “editorial control”.
Accordingly, in order to prove that a company has an editor’s role, one has to prove that the company “plays an active part, which gives it the knowledge of, and control over, the links it suggests to the public for the latter to watch matches, in relation to which the league has exclusive rights.”
The court noted that Puerto 80 “is inventorying, storing, arranging, and offering links supposedly sent by third parties and making it possible to watch topical live matches, said links being arranged in a relevant way, both chronologically and by type of sport. So, the company has editorial control and command over the contents, in the specific aim of making it possible to watch those matches live, although the watching of such matches is normally reserved to a restricted audience of subscribers to channels and websites, to which the broadcasting rights were sold”.
The court also considers that a “same website may have two separate legal descriptions. As far as the forum (board) is concerned, the disputed website matches the ‘web host’ definition, in so far as it merely contains a directory of links to short videos that were sent by web users […]”.
To conclude, Puerto 80 is described by the court as an editor, meaning Puerto 80 cannot claim the benefit of the reduced liability regime that is applicable to web hosts according to the law for trust in digital economy.
In this respect, the league obtained injunctions for the removal of, and for the prohibition to post, hyperlinks making it possible to watch matches, which the league is organizing, either live or with a slight deferment. The court also awarded damages to the league, not because of the decrease of paying subscribers that followed the disputed posting of hyperlinks, but because of the late removal of such hyperlinks by Puerto 80. The late removal was indeed irrelevant once the matches were over, “since the main purpose and object of the website is to make it possible to watch live (or slightly deferred) matches, and not to watch them after they have ended.”