internet service providers’ liability in france 10/07/2012 pauline leger summer seminar july 9 th...
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Internet service providers’ liability in France
10/07/2012Pauline Leger
Summer seminar July 9th -13th 2012
ISP limitation of liability
Legal grounds Directive 2000/31/EC 'Directive on electronic commerce‘, June 8th 2000
French Law on Confidence in the Digital Economy, June 21st 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 9th -13th 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 9th -13th 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and the localization on the web (url address) of the litigious content; grounds upon which the notice should be withdrawn (legal provisions and factual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 9th -13th 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. 1st civ., Feb. 17th 2011, Nord-Ouest Production v./ Dailymotion, n° 09-67896, Bull. civ. I, n° 30 ; Amen v./ K., n° 09-15857, Bull. civ. I, n° 32)
INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE
Summer seminar July 9th -13th 2012
ISP limitation of liability
Not having actual knowledge of illegal activity or information
TGI Paris, 3rd ch. 1st sect., May 29th 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 9th -13th 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, 1st ch., May 9th 2012, Dailymotion v./ 120 films)
• 5 days for Youtube (TGI Paris 3rd ch. 1st sect., May 29th 2012, TF1 v./ YouTube)
Reasonable• 2 days for Youtube (TGI Paris 3rd ch. 4e sect., April 28th 2011, Sppf / Youtube, Google France, Google Ireland)
INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE
Summer seminar July 9th -13th 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 3rd ch. 4e sect., April 28th 2011, Sppf v./ Youtube, Google France, Google Ireland)
INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE
Summer seminar July 9th -13th 2012
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 9th -13th 2012
ISP limitation of liability
Acting expeditiously to remove or to disable access to
the information EUCJ, 3rd ch, Nov. 24th 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 9th -13th 2012
ISP limitation of liability
Acting expeditiously to remove or to disable access to the information
EUCJ, Grand Chamber, July 12th 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 9th -13th 2012
ISP limitation of liability
Acting expeditiously to remove or to disable access to the information
TGI Paris, 3e ch. 1st sect., May 29th 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 9th -13th 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, 1st ch., May 9th 2012, Dailymotion v./ 120 films: the content had been seen more than 11.000 times before the removal (3 months) → 30 000 euros.
INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE
Summer seminar July 9th -13th 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 &15 000 euros fine)
Art. 6-I-4 LCEN
INTERNET SERVICE PROVIDERS’LIABILITY IN FRANCE
Summer seminar July 9th -13th 2012
ISP limitation of liability
Last duty Decree n° 2011-219 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 9th -13th 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 9th -13th 2012
Internet service providers’ liability in France
10/07/2012Pauline Leger
Thank you for your attention
Summer seminar July 9th -13th 2012
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