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On January 23, 2024, the Amiens Court of Appeal issued a significant ruling that defines the obligations of online hosting platforms in managing fraudulent advertisements. This ruling represents the first application in France of the GLAWISCHNIG-PIESCZEK jurisprudence, which was established by the Court of Justice of the European Union on October 3, 2019. The 2019 judgment underscored the need for a balanced approach between consumer protection and the regulatory duties of digital platforms. The recent decision by the Amiens Court of Appeal further clarifies the legal framework for hosting providers, underscoring their crucial role in preventing fraudulent content and ensuring safer online environments for users.
Context: negligence on the part of the accommodation provider in the face of reported fraudulent advertisements
In August 2020, a couple booked a vacation home through an ad on the Abritel website and paid €5,600, only to find out the listing was a scam, previously reported by the property’s actual owner. Despite these warnings, Abritel did not remove the ad. The Court of Senlis initially denied the couple’s request for compensation, leading them to appeal. They argued that Abritel failed to meet its obligations by not deleting the fraudulent listing. The Amiens Court of Appeal was tasked with determining if Abritel’s lack of action violated its legal duties under the French digital economy trust law (LCEN) and whether such negligence could establish legal liability.
Legal analysis: host liability in cases of knowledge of illicit content
The Court of Appeal upheld the judgement of the Senlis judicial Court, based on a strict interpretation of the French law on confidence in the digital economy (LCEN), n° 2004-575 of 21 June 2004. According to this law, the obligations of hosting platforms do not include proactive and systematic monitoring of all content published by users. Hosting providers are only liable if they have proven knowledge of the illegal nature of the content and fail to act quickly to remove it. Therefore, in the absence of evidence of such actual knowledge, web hosts are not liable for fraudulent acts committed by third parties.
In this case, however, the court found the host at fault and established its liability. The host removed the fraudulent advertisement two days after learning of its illegal nature. This delay was deemed insufficient by the court, which ruled that the host had not acted “as promptly as a diligent operator should have done.” The decision emphasizes the importance for hosting platforms to take immediate and effective action upon discovering illegal content to avoid liability.
Analysis of legal causality: No direct link between the web host’s fault and the damage suffered
The Court of Appeal of Amiens determined that the web host was not responsible for the losses incurred by a couple following a fraudulent transaction on their platform. Although it was established that the host did not act swiftly enough in removing a fraudulent advertisement, no legal consequences followed. The court pointed out the absence of a direct causal connection between the host’s delay in removing the advertisement and the couple’s financial loss. This was largely because the couple had opted to proceed with the payment outside the secure payment systems provided by the platform, contrary to the clear guidelines stated in the general terms and conditions. This decision highlights the critical role of following platform-specific security measures to avoid such risks.
Legal implications for hosting platforms: enhancing responsibilities in fraud prevention
The recent ruling by the Court of Appeal of Amiens represents a notable advancement in the legal framework concerning the responsibilities of hosting platforms regarding fraudulent advertisements. The Court has elucidated that while hosting providers are not mandated to proactively screen every advertisement without initial notification, they are obligated to respond swiftly upon identifying illegal content. This clarification not only reinforces their legal responsibilities but also emphasizes the importance of users maintaining vigilance and adhering to recommended security measures to protect their transactions.
Moreover, this judgment could prompt legislative efforts to enhance the accountability of platforms, especially in combating online fraud. The persistence of these challenges, as evidenced by cases like the 2021 Abritel incident, highlights the ongoing need for greater regulatory scrutiny.
This case, in conjunction with the Glawischnig-Piesczek decision by the Court of Justice of the European Union, underscores the increasing necessity for digital platforms to take proactive steps against online misconduct. These decisions are gradually reshaping the roles and duties of platforms within the dynamic digital landscape, emphasizing the urgency for a robust regulatory framework to ensure a secure and trustworthy online environment.
Dreyfus Lawfirm can offer expert assistance on these matters, providing guidance and strategic advice to navigate the complexities of online fraud and platform liability.
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