(Cass. Civ 1ère, 12 July 2012)

The French Supreme Court (Cour de cassation) handed down three rulings on 12 July 2012 in cases involving Google France and Google Inc. in particular. These cases involved similar facts and circumstances: right holders of photographic and motion picture materials had ascertained the unauthorized presence of their materials on websites operated by Google, accessible directly or through links. They sought the takedown of such materials, takedown which was carried out by Google. Having subsequently discovered that such litigious materials were once again accessible from different addresses and links, the right holders brought infringement proceedings against the Google companies.

The Paris Court of Appeal had held that the Google companies could not rely on the provisions of Article 6.I.2 of Act 2004-575 dated 21 June 2004 to promote trust in the digital economy to avoid liability to the extent that they did not take the necessary measures to prevent the litigious materials, which had already been reported to be unlawful, from being placed online again.

Article 6.I.2 of the Act to promote trust in the digital economy provides in this respect that the “civil liability” of content hosts “cannot be incurred on the basis of the activities or information stored at the request of a recipient of such services if they did not have effective knowledge of their unlawful nature or of the facts and circumstances revealing such nature or if, from such time as gaining knowledge thereof, they promptly acted to take down such data or make access thereto impossible.”

The Supreme Court partially reversed the rulings of the Paris Court of Appeal, on the basis that “ordering the Google companies to prevent any new onlining of the infringing videos/photos, without these companies even having been informed through any other valid notice, when such is required for them to have effective knowledge of their unlawful nature and location and to be required to take prompt action to take them down or make access thereto impossible, is equivalent to placing these companies under (…) a general duty to monitor the images stored by them and to look for content placed online unlawfully and to require them, when this is not proportionate to the objective pursued, to set up a blocking device without any limitation in time”.

The principle of the “notice and stay down” (or “take down, stay down”) which requires intermediaries to prevent the reappearance of previously reported contents, as interpreted and applied by certain courts, was thus clearly disavowed by the Supreme Court in the above rulings: the host must receive a new notice, under the conditions laid down by Article 6.I.5 of the Act to promote trust in the digital economy, to promptly take down any content that has reappeared that was previously notified as being unlawful. Otherwise, its liability cannot be incurred.

This solution was welcomed by the directors of ASIC (Association des Services Internet Communautaires or French Association of Internet Community Services). This coalition considers that the “the French Supreme Court has just avoided the risk in France of generalized screening of content published by Internet users on the Web, without judicial review”. It is also consistent with the provisions of Article 6.I.7 of the Act to promote trust in the digital economy which specify that technical intermediaries are not under “a general duty to monitor the information they transmit or store”, or “a general duty to seek out facts or circumstances revealing unlawful activities”.