An amendment to the 1986 Freedom of Communications Act relating to the obligations of internet intermediaries [internet service providers (ISPs) and internet hosting providers (hosts)] was passed on August 1 2000 (Law 2000-719).
The amendment states that an internet hosting provider will only be criminally or civilly liable for the content of hosted web sites if, having been ordered to block access to a particular web site by a judicial authority, it did not promptly take action.
The amendment further states that internet service providers must (i) inform their subscribers of the means available to block access to certain web sites or services, and (ii) make available at least one of these means to their subscribers. In addition, both ISPs and hosts must maintain a database identifying all web site contributors, which can only be disclosed to judicial authorities.
Professional web site contributors (whether individuals or companies) must make their full name and address available to the public. Non-professional web site contributors, in order to protect their anonymity, may simply give the name and address of their host (as long as the host has a record of the necessary identification details). The provision regarding the mandatory disclosure of the identity of contributors has stirred debate among various internet interest groups who view this as (i) an unacceptable incursion on individual freedom and liberty, and (ii) contrary to the spirit of the Freedom of Communications Act.
Prior to this amendment, French case law had followed two separate lines of authority in relation to the liability of hosts for the content of material on their web sites. The principle of the earlier line of cases was established in Estelle Hallyday v Valentin Lacambre (June 9 1998), where the Paris Civil Court held that "internet hosting providers have an obligation to ensure the morality of those that contribute to their web sites in respect of the laws and rights of third parties." However, the following year, a decision made by the Puteaux Court of Appeal found a host not liable for having allowed defamatory content to be displayed on its web site (AXA v Infonie, September 28 1999) because it had no control over the information appearing on the site before it was put online. More recently, the Versailles Court of Appeal similarly found that a host was not liable for the illegal display of model Lynda Lacoste's photographs on certain web sites. This ruling was made on the grounds that the host had developed reasonable means for detecting sites containing illicit material and that, as soon as it was informed of the existence of the photographs, it had taken all steps to identify the author, to block access to the web site and to prevent the opening of new web sites containing the photographs (Multimania v Lacoste, June 8 2000).
The amendment to the 1986 Freedom of Communications Act was originally intended to follow the spirit of the recent EC Directive on Electronic Commerce dated June 8 2000. However, the final wording of the amendment had to be changed before it could be passed, as part of it was found to be unconstitutional. Therefore, in its present form, the law does not seem to go as far as is required by the European directive. Article 14.1 of the directive provides that a host should not be liable if (i) it had no actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (ii) on obtaining this knowledge or awareness, it acts expeditiously to remove or disable access to the information.
For further information on this topic please contact Eric Morgan de Rivery, Pierre de Girard or Kate Thackeray at Lovells by telephone (+33 1 53 67 47 47) or by fax (+33 1 53 67 47 48) or by email ([email protected], [email protected] or [email protected]).