In a ruling of June 21, 2013 (1), the Paris Court of Appeal rejected a counterfeiting action filed by the SPPF (the French collecting society for record labels’ neighboring rights in sound recordings) against Youtube for allowing internet users to post counterfeit videos.
In 2008 Youtube had withdrawn over 200 contentious videos from its platform following a cease-and-desist letter from the SPPF specifying that the rights holders had not given their consent. Since a large number of these videos were subsequently posted several months later, the SPPF filed for an action against Youtube and Google.
The Paris Court of Appeal ruled that only the judicial authority has the power to impose on hosting service providers a duty to temporary and targeted surveillance in accordance with article 6-I-7 paragraph 2 of the law to generate confidence in the digital economy (LCEN).
It is worth recalling that as a result of combining sections of articles 6-I-2 and 6-I-5 of the LCEN legislation, hosting service providers are not subject to any general obligation to monitor the data stored or any general obligation to research the facts or circumstances arising from illicit activities, . Besides, the withdrawing of content by a host site cannot be undertaken without prior notice.
The Paris Court of Appeal confirmed the lack of obligation on the part of hosting service providers to make a permanent removal, and restated the requirement for a further notification when withdrawn contents are re-posted. In other words, every new posting containing illicit content requires a new withdrawal notification.
This ruling follows the precedent set by the High Court (Cour de Cassation) in three decisions of July 12, 2012 (2), in which it refused to enforce an obligation for permanent withdrawal, considered to be a duty of general surveillance not covered by the terms of the LCEN legislation. When illicit content is posted once again by a different internet user, it should be considered as a new case requiring a further notification in line with the requirements of article L6-5 LCEN. To support the duty to permanent withdrawal would imply the modification of LCEN article 6 and would require an overhaul of e-commerce guidelines.
As a result, it is even more important today to monitor social networks in order to respond appropriately.
(1) Paris Court of Appeal, pole 5 Chamber 2, decision of June 21 3013, SPPF versus American company YOUTUBE LLC, GOOGLE France and GOOGLE Ireland ltd.
(2) Decisions of July 12 2012, no 11-13-666; no 11-15.165 and 11-15.188; no 11-13.669