23 February, 2011
On 17 February 2011 the French Court of Cassation recognized the hosting status of Dailymotion and Fuzz.fr. The court also confirmed, in relation to the Amen website case, that the judges had to verify that the content withdrawal requests observed the requirements of LCEN (loi pour la confiance dans l’économie numérique – French implementation of the EU E-commerce Directive) before condemning a hosting site that had not withdrawn promptly the notified content.
The decisions of the Court of Cassation establish clearly the boundary between a content hosting site and a web service editor. In the Dailymotion case, it comes to confirm the decision of the French Court of Appeal of May 2009 which overturned a 2007 court decision that considered the hosting site liable for the content posted online on its platform. Moreover, the site had responded immediately after having been notified that it was hosting illegal content.
The Court of Cassation also overturned the decision against Fuzz.fr in the case introduced by actor Olivier Martinez. In 2008, a French court decided that the owner of the website had an editorial responsibility, even if the website was a digg-like service (where the users can vote which news comes on first) and forced him to pay 1000 euro in damages for infringing the actor’s privacy and an additional 1500 euro in legal fees. The Court of Cassation considered fuzz.fr a hosting site in terms of LCEN and therefore not liable for the content posted on it.
An important clarification in relation both to Dailymotion and the Amen hosting site is the necessity to correctly formulate the requests for content withdrawal by taking all actions stipulated by the law.
According to LCEN, the request to withdraw content must cover a series of elements including the notification date, the identification data of the notifying person (either natural or legal), the identification data of the addressee, the description of the litigious facts and precise location, the reasons for the withdrawal, including legal basis and justification, , a copy of the correspondence addressed to the author or editor of the litigious actions asking for their interruption, withdrawal or modification, or the justification of the fact that the author or editor could not be contacted.
The subsidiarity principle is thus observed, meaning that a hosting site cannot be required to withdraw content before proving that the author of the content has been first contacted and required to withdraw the respective content. This could be the end of mass withdrawals of files without any previous procedure.
However, the Legal Commission of the Senate seems to want to change the rules and on 15 February 2011 it proposed the creation of a new status between hoster and editor that will have filtering and surveillance obligations.
Dailymotion and Fuzz recognised as hosters by the Cassation Court (only in French, 17.02.2011)
The Cassation Court saves Fuzz.fr service as well (only in French, 18.02.2011)
The Cassation Court protects the hosting status of Dailymotion. Thanks Hadopi ? (only in French, 17.02.2011)
The assignees will not be able to withdraw mass contents (only in French, 17.02.2011)
The Senate proposes the creation of web service editor status (only in French, (16.02.2011)
EDRi-gram: French courts give clear decisions for hosted content (20.05.2009)