Internet service providers’ liability in France 10/07/2012 Pauline Leger Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Legal grounds Directive 2000/31/EC 'Directive on electronic commerce‘, June 8 th 2000 French Law on Confidence in the Digital Economy, June 21 st 2004 ‘LCEN’  Exemption of liability cannot be liable for UGC  Art. 6-I-2 and 6-I-3 LCEN  Art. 12, 13 and 14 Directive on electronic commerce have no general obligation to monitor UGC  Art. 6-I-7 LCEN  Art. 15 Directive on electronic commerce INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Conditions Characterized as intermediaries and service providers → neutral role Met two requirements → ‘notice and take down’  Not having actual knowledge of illegal activity or information, or not being aware of facts or circumstances that would expose the illegal activity or information ;  Upon obtaining knowledge or awareness, acting expeditiously to remove or to disable access to the information. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Not having actual knowledge of illegal activity or information Knowledge assumed with notification from a copyright owner  date of the notice;  the notifying person‘s name and domicile;  information about the issuer of the notice and the recipient;  the description and the localization on the web (url address) of the litigious content;  grounds upon which the notice should be withdrawn (legal provisions and factual grounds);  copy of correspondence sent to the author or publisher of the litigious content requesting their interruption, withdrawal or modification, or justification that the author or publisher could not be reached. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Not having actual knowledge of illegal activity or information If one of the statement is missing → no effective knowledge of the infringement French courts must appreciate the legality of notifications (Cass. 1 st civ., Feb. 17 th 2011, Nord-Ouest Production v./ Dailymotion, n° , Bull. civ. I, n° 30 ; Amen v./ K., n° , Bull. civ. I, n° 32) INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Not having actual knowledge of illegal activity or information TGI Paris, 3 rd ch. 1 st sect., May 29 th 2012, TF1 v./ YouTube  TF1 did not sufficiently establish which were the infringed television programs. TF1 should have indicated for each program its number, when it was broadcasted and should have brought each of them in line with the screenshots done by a bailiff  TF1 failed to prove its rights on these contents. Indeed TF1 should have given proof that it had an exclusive right on them in order to launch such an action, for instance by providing contracts. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Acting expeditiously to remove or to disable access to the information Removal delay  Not reasonable 3 months for Dailymotion (Paris, Pôle 5, 1 st ch., May 9 th 2012, Dailymotion v./ 120 films) 5 days for Youtube (TGI Paris 3 rd ch. 1 st sect., May 29 th 2012, TF1 v./ YouTube)  Reasonable 2 days for Youtube (TGI Paris 3 rd ch. 4e sect., April 28th 2011, Sppf / Youtube, Google France, Google Ireland) INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Acting expeditiously to remove or to disable access to the information Disabling access to the content: take down and stay down  have a duty to establish a procedure to disable it automatically if the content is the same or if it is included in a different file or/and comes from a different user  the rights holder do not have to notify the content again  it is not a general duty to monitor (TGI de Paris 3 rd ch. 4e sect., April 28 th 2011, Sppf v./ Youtube, Google France, Google Ireland) INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability ISP limitation of liability  Acting expeditiously to remove or to disable access to the information Directive on electronic commerce  ( 45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.  (46) (…) the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level”.  Art. 12.3, 13.2 and 14.3 “This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.” INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Acting expeditiously to remove or to disable access to the information EUCJ, 3 rd ch, Nov. 24 th 2011, Scarlet Extended SA v./ (SABAM), C- 70/10 Injunction made against an internet service provider which requires it to install a system for filtering: all electronic communications passing via its services, in particular those involving the use of peer-to-peer software; which applies indiscriminately to all its customers; as a preventive measure; exclusively at its expense; and for an unlimited period, would require the intermediary to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminarJuly 9 th -13 th 2012

ISP limitation of liability  Acting expeditiously to remove or to disable access to the information EUCJ, Grand Chamber, July 12 th 2011, L’Oréal SA v./ eBay International AG, C ‑ 324/09 “Those injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade”. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminarJuly 9 th -13 th 2012

ISP limitation of liability  Acting expeditiously to remove or to disable access to the information TGI Paris, 3e ch. 1 st sect., May 29 th 2012, TF1.v./ YouTube. “ (…) rights holders were responsible for not having answered to Youtube proposition to use its content identification system (ID content)”. → Duty to collaborate INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminarJuly 9 th -13 th 2012

ISP limitation of liability  Not having actual knowledge of illegal activity or information  Upon obtaining knowledge or awareness, acting expeditiously to remove or to disable access to the information. If ISP do not meet both of these requirements → action before civil or criminal courts brought by the copyright owner against the intermediary. Ground : general principle of infringement. i.e. : Paris, Pôle 5, 1 st ch., May 9th 2012, Dailymotion v./ 120 films: the content had been seen more than times before the removal (3 months) → euros. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Not having actual knowledge of illegal activity or information  Upon obtaining knowledge or awareness, acting expeditiously to remove or to disable access to the information. → any person who will purposely notify an intermediary with a false copyright or related rights infringement will be punished (maximum penalty: one year of imprisonment & euros fine)  Art. 6-I-4 LCEN INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  Last duty Decree n° du Feb. 25th 2011 : Internet service providers have to hold and store the data which will help identify anyone who has contributed to the creation of the content. They must be able to communicate to the judicial authority or the Police, upon their request, information enabling the identification Problems remain unsolved: cost of such duty and compensation for intermediaries INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

ISP limitation of liability  On the one hand, when the directive on electronic commerce was adopted, the European Parliament and the Council aimed at granting internet service providers with a favorable liability scheme so as not to burden them and facilitate the development of information society services.  On the other hand, the set of conditions internet service providers have to comply with are relatively strict, making them liable in most cases. INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE Summer seminar July 9 th -13 th 2012

Internet service providers’ liability in France 10/07/2012 Pauline Leger Thank you for your attention Summer seminar July 9 th -13 th 2012