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Recent decisions of the Paris Court of Appeal: towards an extra duty of surveillance for hosting providers?

In four recent decisions (respectively relating to the movies “le génocide arménien”; “l’affaire Clearstream”; “les dissimulateurs” and “Mondovino”), the Paris Court of Appeal held Google liable for copyright infringement. The facts of the different cases are similar: an Internet user had placed an unauthorized copy of a movie on Google Video. Following the procedure set up by the law on confidence in the digital environment, which has implemented the e-commerce Directive (Directive 2000/31 EC) in France, the right holders had notified Google about the presence of the illegal copies. Once informed, Google had removed the material from its platform. However, after a while, the right holders established that Google Videos was still proposing links to the litigious videos and sued the company (Google Inc. and Google France) for copyright infringement.

At first instance, the District Court rejected the claims and exempted Google from copyright infringement. In appeal, the Court ruled that Google not only had the obligation to remove the notified videos but also to use all the possible technical means to prevent new access to the infringing materials. In two instances (“les dissimulateurs” and “affaire Clearstream”), it appeared that illegal copies of the videos (and not only links to) had been placed back on the platform by other users. Because Google failed to promptly act to prevent any new publication of already notified materials, the Court refused to apply the liability regime of hosting providers. The Court applied instead the general regime of civil liability. In addition, the Court considered that the search engine function of Google Video was going beyond the passive and neutral functions of a hosting provider. Through this function, Google was not proposing a direct access to videos posted by users but was instead reproducing, on its own pages, videos available on other platforms. These unauthorized reproductions constituted copyright infringements.

These four decisions are quite surprising. Until recently only lower courtshad created an ‘extra duty of care’ obliging hosting providers to monitor a priori subsequent infringements (such as new publications) of already identified infringing materials. In these decisions, the Court of Appeal seems to recognize this new duty of surveillance. However neither the e-commerce Directive nor the law on confidence in the digital economy imposes such an obligation. This position is jeopardizing the neutrality of online intermediaries. At the same time, it is more and more obvious that the definition of hosting providers is not adapted to online platforms (such as Youtube, Dailymotion, Facebook) or search engines (Google) whose activities are not limited to the storage or transmission of materials. This leads to discrepancies between national jurisdictions when applying the liability regime to hosting providers but also to the creation of national obligations, which are not compliant with the e-commerce Directive. The future revision of the e-commerce Directive should take into account the diversity of online intermediaries and their activities.

The decisions are not available on the official website of Legifrance but can be read on the platform Legalis (www.legalis.net). We invite our readers to check the following decisions: Google Inc. / Compagnie des phares et balises (movie “le genocide arménien); Google Inc./ Bac Films, the Factory (movie “l’affaire Clearstream”); Google Inc./ Bac Films, the Factory, Canal + (movie “les dissimulateurs”) and Google Inc./Les Films de la Croisade, Goatworks Films (movie “Mondovino”), all issued on 14 January 2011.

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  • Okke

    I wasn’t that surprised by these verdicts. I refer to recent French caselaw in the Myspace, Dailymotion and especially the “Les enfents perdus de Tranquility Bay” (TGI Paris, 2007) case against GoogleVideo holding GVideo liable to prevent reuploads. See also the French Supreme Court decision in Armata holding an internet intermediary hosting eDonkey links liable on the basis of direct infringement (No Y 09-80.787, No 1884).

    Article 15 eCommerce Directive allows for filtering obligations in specific circumstances, so I am not sure I agree with your statement that the e-commerce Directive doesn’t impose such an obligation.

    You say that these verdicts are “jeopardizing the neutrality of online intermediaries”, that’s your opinion but there are quite a few verdicts in the EU imposing filtering obligations on websites/online intermediaries.

    • http://www.ivir.nl/staff/jasserand.html Catherine Jasserand

      Dear Okke,

      Many thanks for your comment. According to me, the new element in these 4 decisions is not the fact that the Court holds the online intermediarie liable for direct copyright infringement but that a Court of Appeal imposes on it a duty to monitor subsequent publications of a video, which was notified once as being illegal. The video at stake had been notified to the online provider, which removed it in compliance with Article 14 of the e-commerce Directive and Article 6-I-2 of the LCEN. However, neither the law nor the e-commerce Directive makes the online provider liable for new publication of the infringing material. The case has not been considered. As you have mentioned, several Courts have already acknowledged this extra obligation of surveillance. However, until recently, these judgments were only rendered by lower Courts (TGI). With these Court of Appeal’s decisions, this jurisprudential obligation reaches a “higher level”. Concerning filtering, an online provider can be requested by competent authorities to filter content but it does not have a legal obligation to a priori monitor content. This is the meaning of Article 15 of the e-commerce Directive.

      I was indeed expressing my opinion concerning the neutrality of online intermediaries. However, I believe that the e-commerce Directive as well as the national laws implementing it are out-dated. The Directive was adopted at a time when web 2.0 platforms did not exist. We can just observe that the notion of “hosting provider”is quite flexible in France since it has been applied to eBay, Facebook but also to other online providers, which do not only transmit or store content. There are very few true hosting providers in the original sense of the e-commerce Directive. In the end, the decisions of the Court of Appeals show how important and urgent a revision of the e-commerce Directive is. That is for sure my opinion.
      Best regards,

      Catherine Jasserand

      • Okke

        Hi Catherine,

        Thank you for your informative reply. I have always wondered if article 14 eCommerce Directive was written with websites in mind or if this article was meant to be limited to technical hosting providers (servers and connectivity). Like you I am curious to learn if the Commission is going comment on these sorts of issues. There are also a number of cases re art 12/15 eCommerce Dir pending at the ECJ. I think the coming year or so is going to be very interesting for us both although we are maybe hoping for different outcomes :)

        Best wishes,
        Okke

        Best wishes
        Okke

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