The question of liability of internet service providers has become a crucial issue worldwide due in particular to the recent development of the web 2.0 and the increase in the popularity of peer to peer file sharing. The aim of this article is to focus on usergenerated content in France (see Graham Smith’s article “Online intermediary liability” on page 1 for a general European overview).

The development of user generated content websites gave rise to a battle between intellectual property rights owners and website owners. The former consider that website owners must be liable for infringing content posted by web users, while the latter consider that they cannot be held liable as they are hosting providers in the sense of the E-Commerce Directive.

The E-Commerce Directive was transposed into French law by Law No. 2004-575 of 21 June 2004 (Loi pour la confiance dans l’économie numérique/Law to promote confidence in the digital economy). This law defines the hosting provider as: “a natural person or a legal entity who provides, even without charge, for the public broadcasting by online communication services, the storage of signals, written documents, images, sounds or messages of any nature provided by the recipients of these services”.

According to this law, the hosting provider is liable for the stored contents, only if (i) he was actually aware of the illicit character of the content or if (ii) he did not delete the illicit content or did not forbid access to such content promptly after becoming aware of its illicit character.

If a website owner is not a hosting provider, he must be considered liable for the content posted by web users.

On this point, IP right owners argue that, in the case of traditional technical hosting, the hosting provider is a technical intermediary related to the website only by a contract. In contrast, the user generated content website distributes the content posted by the web users under its own trade marks. Moreover, the broadcasting of the posted contents creates an audience and therefore advertising revenue. The IP right owners also assert that website owners intervene in order to improve this content, which is a different activity from that of simple content storage.

Website owners oppose this analysis. They consider that the features raised by IP right owners are not new because, for example, the same can be said about discussions forums. In addition, according to the aforementioned law, the status of the hosting provider does not depend on the choice of economic model (e.g. whether or not the website generates revenue).

In France, there were two different case law trends on this question.

According to some French courts’ rulings, website owners are considered as publishers (Tribunal de Grande Instance 22 June 2007, Lafesse v Myspace). However, some courts ruled against this interpretation (Tribunal de Commerce, 20 February 2008, Flash Film v Google France and Google Inc, Tribunal de Grande Instance Paris, 19 October 2007 Zadig v Google).

However, the French Court decisions of 2008 indicate that in future the Courts will analyse the actual activities of the website owners to determine whether or not they are hosting providers. For example, a website to which third parties can post contributions seems to be considered as a hosting provider, whereas if the hosting activity is accessory to or indistinguishable from a commercial activity, the website owner shall not be considered as a hosting provider (eBay decisions: Tribunal de Commerce Paris, 30 June 2008 and Tribunal de Grande Instance Troyes, 4 June 2008).

In any case, even when the Judges decide that the website owner is a hosting provider and not a publisher, they tend to increase the obligations of the hosting provider as provided under the aforementioned law.

First example: regarding the time when a hosting provider is considered as informed of the existence of illicit content on its website, a French court ruled that, with regard to its activity, DailyMotion was at least aware of the factual circumstances which gave rise to an inference that infringing content was posted on its website (Tribunal de Grande Instance, 13 July 2007 Nord Ouest Production v Dailymotion2).

According to this decision, a notification by IP owners would not be necessary. However, to our knowledge, this decision has not been followed by any French Court.

Second example: a French court ruled that the website owner must take all necessary measures to delete infringing content within 24 hours after having knowledge of it (Toulouse, 13 March 2008, Krins K. / Pierre G.).

Third example: a French court added another obligation onto hosting providers in ruling that, after having been informed of infringing content the website owner must use all necessary means to avoid any new broadcasting (Tribunal de Grande Instance Paris, 19 October 2007, Zadig Production v Google, Tribunal de Commerce Paris 20 February 2008, Flash Film v Google France and Google Inc).

This leads to further legal uncertainty for hosting providers.

What is the solution? A new law? In general, in France, it takes a long time to pass a bill and in most cases, when it is finally passed, the bill is no longer suited to the situation. Therefore, the solution may be what is called “soft law”, namely agreements between different players on the solutions and processes to be implemented.