One could think that the problem with Google's commercial Adword links offering had been settled. However, on 11 December 2013, the Appeal Court of Paris rendered a ruling that certainly gave a relief to the American giant.
This article reviews the underlying criteria and implications of the status of web players and examines Google's obligations concerning Adwords.
- The Web is responsible
As we all know, everything goes fast on the web, where anonymity is both guaranteed and easy to maintain. However, being anyone does not mean that one can do anything! The law goes beyond the keyboard!
Responsibilities on the web can be summarized as follows:
- Authors are responsible for any illegal contents (insults; video infringing upon third parties' rights; etc.) they may issue through the Internet.
However, it is often difficult to identify authors on the web, as they can act under a pseudonym or with a false identity. In fact, failing any specific court order, the service provider or the internet access provider will not disclose their client's identity!
- Internet providers may be held liable, depending on whether they are considered as publishers or hosters.
But what is a publisher, as opposed to a hoster?
The French law of 2004 on confidence in the digital economy (LCEN) and the ensuing case law have set the pace.
In the legal sense of the term, a publisher is an active player and as such is supposed to be aware and in control of the contents that are published on its website. On the other hand, the hoster is a technical service provider who simply provides a server, and possibly an interface.
Several orders rendered by the CJEU - and particularly the order of 23 March 2010 - have established the applicable criteria. The hoster's activity is purely technical, automatic and passive, which implies that the hoster did not have knowledge of, or control over the information that was transmitted or stored.
As an example, Facebook provides the technical means needed to publish information on the Internet, and every user then posts any contents he/she may decide (photos, text, videos, etc.). Facebook is thus a hoster.
On the other hand, certain second-hand sales sites such as Priceminister or Ebay systematically monitor the ads that are put on line, authorize searches using relevant keywords, ensure anonymity for sellers, etc., and hence have been considered as publishers.
A publisher is responsible for any contents that are published on its site, and is subject to a monitoring obligation.
By contrast, the hoster's responsibility is reduced, as the hoster can only be held liable insofar as it can be proven that, while it was aware of a patently illegal content, it did not act promptly to remove such content.
Nonetheless, it should be noted that the notification of a content to the hoster is subject to specific formalism, and several judgments have rejected the hoster's responsibility on the ground that the information it had received did not contain all the necessary clarifications, and particularly the exact identification of the victim.
So it is clear that this information obligation should not be disregarded, as it will be a determining factor in terms of the future admissibility of the claim!
Also, the "patently illegal" nature of a content is arguable and, failing any court decision on the matter, it is the responsibility of the hoster to take the delicate decision on whether a notified content is patently illegal or not. For detecting videos that are infringing upon copyrights, Youtube and DailyMotion now use an automated recognition system. For other types of illegal videos, Google has set up teams to handle and determine the relevance of all alerts received from web users.
Youtube recently removed the reported "official version" of Shoananas - the anti-Semitic parody by French humorist Dieudonné of a song by former French singer Annie Cordy.
One of the videos last published by Dieudonné, on 31 December (called 2014 sera l'année de la quenelle) which was the subject of a complaint by the French union of Jewish students (UEJF) and the J'accuse ! association, has been viewed by over three million people on YouTube. So can it be qualified as "patently illegal"?
- Google is actually a hoster in terms of its Adwords service
Going back to the judgment of 11 December last year concerning the status of Google commercial Adword link service, it first seemed that case law had been decisive and held Google as a publisher in this context, and hence as liable for any commercially illegal links.
But the Paris Court of Appeal has reversed this approach. So it's all back to the beginning!
Actor Olivier Martinez filed a claim against Google on the ground that a commercial link led to an article published by Gala which disclosed information on this actor's private life.
Gala is obviously responsible for the content of its article that constitutes an invasion of Olivier Martinez's privacy. But is Google responsible for allowing the article to be published in its commercial links?
The Paris Court of Appeal considered that the advertisement had been solely created by Gala, which magazine had written the contents of the commercial links and selected the keywords by itself. So Google simply is a hoster! And Google disabled the links concerned one week after receiving a formal notice from the actor, so Google cannot be held liable. It's as simple as that!
This decision should come as a relief for Google, which sometimes took an undesirable overzealous approach... as illustrated by the case that led to the Supreme Court of Appeal's decision of 14 May 2013.
In fact, it is worth reminding that, following several court decisions (Interflora, Eurochallenge, etc.), a company can use a competitor's trademark on the Internet as a keyword to display its paying commercial link via Google AdWords. "Failing any circumstances that would demonstrate a risk of confusion between the websites of two competing entities, soliciting a third party's customers through the purchase of keywords is lawful, insofar as no unfair practices are involved.
In other words, a florist has the right to reserve the Interflora keyword if its commercial advertisement does not misleadingly suggest that there is a link between the two companies.
However, Google accepted requests from certain trademark owners who had asked Google to take all measures needed so that only their respective websites would come up in response to searches based on the exact keywords corresponding to their respective trademarks.
In a judgment handed down on 14 May 2013, the Supreme Court of Appeal approved the decision of the Appeal Court of Lyon which had ordered a trademark owner to pay 80,000 Euros by way of damages to its competitor. The court believed that the trademark owner had been at fault in asking the referencing service provider to stop displaying advertisements from competitors in response to requests corresponding to its own trademark, as in this particular case the publicity did not create any risk of confusion.
Both jurisdictions have considered that in obtaining from Google that it would stop referencing the competitor on the Internet, the trademark owner unduly deprived said competitor of a means of accessing customers to whom it would have been able to offer its competing service.
Overall, while its problems are not over yet, Google should be able to breathe a sigh of relief... at least until the next court decision!