In two decisions on 17 February 2011, the Supreme Court confirmed that the online video-sharing site Dailymotion and an aggregator of RSS flows were both technical intermediaries.
Meaning of « hosting provider »
In the Dailymotion case, Nord-Ouest Production, a company owning the rights to the film « Joyeux Noël », served formal notice on Dailymotion to withdraw the film from its site. More than a month after notice was sent, the film was still available on the site. Confirming the Paris Court of Appeal's decision of 6 May 2009, the Supreme Court held that Dailymotion was a technical intermediary within the meaning of article 6-I-2 of the Law for Confidence in the Digital Economy, for the following reasons:
- technical operations (re-encoding and formatting) « in no way involve [the hosting provider] in selecting the content placed on line »,
- similarly, « the putting in place of presentation frames and the making available of tools for classifying content » do not involve a choice of the content placed on line by the hosting provider,
- finally, « commercial exploitation of the site through the selling of advertising space does not entail the capacity to affect content placed on line ».
The Supreme Court followed similar reasoning to conclude that the publisher of fuzz.fr, an interactive site allowing Internet users to upload hyperlinks under various headings in predetermined categories, is also a technical intermediary. Confirming the Paris Court of Appeal's ruling of 21 November 2008, the Supreme Court noted that the site publisher structured and categorised the information hosted but « was not the author of the titles and hyperlinks, and neither decided on, nor checked the site content ».
Application of the hosting provider status
Having found Dailymotion to be a hosting provider, the Supreme Court noted that the letter of formal notice from Nord-Ouest production did not include all the information required by article 6-I-5 of the Law for Confidence in the Digital Economy. The information must be sufficient to identify the infringing content in question with sufficient precision. Dailymotion only became effectively aware of the offending content upon service of the complaint and its exhibits and was guilty of « no breach of the obligation of promptness in withdrawing the illegal content or blocking access to it ». It could therefore not be found liable.
Developments in French case law
The Dailymotion ruling clearly reverses the Tiscali decision handed down by the Supreme Court on 14 January 2010. In that case, which related to facts falling within the scope of the law on freedom of communication of 30 September 1986, as amended by law n° 2000-179 of 1 August 2000, a blogger uploaded extracts of a comic on to his personal blog, hosted by Tiscali, without the consent of the owner of the rights. The Supreme Court held that the services provided by Tiscali, which included inserting and managing advertisements on the personal pages of hosted users, exceeded the simple technical function of storing information. Consequently, the Supreme Court held that Tiscali could not enjoy the benefit of limited liability for hosting providers provided for by the law on freedom of communication (replaced by the Law for Confidence in the Digital Economy on 23 June 2004).
In these two 2011 decisions, the Supreme Court appears to follow the ruling of the European Court of Justice on 23 March 2010 in the Google Adwords case. In this ruling, the ECJ held that the fact that a company derives an economic or commercial benefit from the provision of hosting services does not prevent it from enjoying limited liability as a hosting provider.
These two decisions, which the Supreme Court has publicised widely, must be read in the light of the information report delivered by two French senators (Laurent Béteille and Richard Yung) on 9 February 2011. This report on the anti-infringement law of 29 October 2007 recommends the insertion into the e-Commerce Directive of 8 June 2000 of a new status of « service publisher ». For the report's authors, a service publisher would be the person deriving a direct economic benefit from the consultation of hosted content. As publisher and hosting provider, the service publisher would have to be able to identify the persons who created the content that it hosts. The service publisher would also be required to introduce an alert system allowing Internet users to notify illegal content. Another obligation would be to install state-of-the-art surveillance tools of hosted content and to search for actions and circumstances revealing illegal activities. This would be a best-efforts obligation only. The service publisher could be found civilly or criminally liable if it became aware of clearly illegal activity or information and failed to take prompt action to remove the information or block access to it. Even if the service publisher status makes some economic sense, it seems difficult to square with the e-Commerce Directive. In any event, the positions adopted by European and French case law are very far from the direction in which the French legislature wishes to go. The meaning and the application of the hosting provider status will no doubt remain a subject of controversy in France.