WILMAP: France

LEGISLATION

Law No 2014-315 of March 11, 2014, Reinforcing the Fight against Counterfeiting (renforçant la lutte contre la contrefaçon)
 
[increasing access to information and damages available in case of infringement.]
 
Law No. 2009-1311 of October 28, 2009, on the Criminal Protection of Literary and Artistic Property on the Internet
 
[providing internet suspension sanctions for persons using the Internet to commit infringement (art 7 of this law, now codified under L335-7 French IPC) and obligations for owner of internet access to secure their internet access (art 10 of the law, now codified under L336-10 French IPC)]
 
Law No. 2009-669 of June 12, 2009, Promoting The Dissemination and Protection Of Creative Works on The Internet (a.k.a. HADOPI law) 
 
[providing injunctive measures against any person likely to remedy the situation (art 10 now codified under L336-2 French Intellectual Property Code (IPC)]
 
Law No. 2007-1544 of October 29, 2007, against Counterfeiting (de lutte contre la contrefacon) 
 
[notably providing that persons involved in the distribution of infringing products or providing a service used to infringe can be ordered to provide information concerning the source or network of infringement (see art. L331-1-2 French IPC)]
 
Law No, 2006-961 of August1, 2006, on Copyright and Related Rights in the Information Society (relative au droit d’auteur et aux droits voisins dans la societe de l’information, a.k.a DADVSI)
 
[implementing new exception to copyright – providing injunctions against providers of software whose main functions is to give unauthorized access to copyrighted content.]
 
Law No. 2004-575 of June 21, 2004, For Confidence in the Digital Economy (Loi pour la Confiance dans l’Economie Numérique a.k.a LCEN)
 
[implementing limitations of liability provided in Council Directive 2000/31/EC (e-commerce Directive), specially to the benefit of routing, caching and hosting providers (see art. 6-I-2). No specific exemption for linking providers. Hosting providers cannot be bound by any general monitoring obligations but can be enjoined to conduct focused and temporary monitoring activities. Hosting providers have an obligation to keep identification information about their users (6-II).]
 
Civil Code (spec. art.1382 1383 and 1384)
 
[providing the general principle of civil liability according to which any person is liable for the damages it causes.]

BILLS AND LEGISLATIVE PROPOSALS

 
[Senate’s bill offering to impose an automatic assignment of the right holder’s right to approved collecting societies, that would be in charge of negotiating agreements with search engine services in order to authorize the reproduction and representation of plastic, graphic and photographic works and the payment of royalties.] 

DECISIONS

Superior Courts

Cour de Cassation, Google Inc. / Compagnie des phares et balises ; Google Inc./ Bac Films, the Factory (movie “L’affaire Clearstream”); Google Inc./ Bac Films, the Factory, Canal + (movie “Les dissimulateurs”) and Google Inc./Les Films de la Croisade, Goatworks Films (movie “Mondovino”), July 12, 2012 (Court of Appeals of Paris, January 14, 2011)
 
[Google is eligible under the hosting safe harbor and cannot be bound by general monitoring obligation but may be enjoined to set up some targeted and temporary monitoring tools to filter out some content.]
 
 
[Google is liable for suggesting in its auto-suggest tool, words such as “Torrent”, “Megaupload” or “Rapidshare” when users type in names of artists or bands in the Google search bar, because it makes it possible to infringe copyright and/or neighboring rights by directing Internet’s searches towards services that offer illegal downloading. Google must implement the measures requested (stop associating determined keywords with the terms used in search) regardless of the possibility to easily circumvent these measures: as soon as they are aimed at contributing to remedy the situation by making it more difficult to find illegal sites, the measures do not have to be perfect.]
 
Cour de Cassation, eBay Inc et al. v. LVMH, Parfums Christian Dior et alMay 3, 2012 (affirming C.A. Paris Sep. 3, 2010)
 
[holding eBay liable for third parties’ sales on eBay because played an “active role” in providing assistance in the promotion and optimization of these offers. eBay was also held to have red flag knowledge of infringing activity because of (i) the multitude notices of infringement it received on sales concerning this type of products and (ii) its promotion and involvement in these sales.]
 
 
[holding video sharing platform Dailymotion eligible under the hosting safe harbor. The Court held that the mere awareness by the intermediary that its service may be used for infringing activity was insufficient to make it liable if it had shown willingness to take down infringing content.]
 
Cour de Cassation, Olivier Martinez v. Bloobox.netFebruary 17, 2011 (affirming Court of Appeals of Paris, November 21, 2008)
 
[dismissing M. X (actor) from its action based on breach of privacy, based on the fact that Bloobox was a mere aggregator, whose activity was limited to organizing and classifying third party information. Because this aggregator does not have control or knowledge of third party’s content and does not play an active role, it is eligible under the hosting safe harbor.]
 
Cour de Cassation (ch. crim.), Galatee films et al v. AOL France et al Cour de Cassation (1ere civ.), January 11, 2011
 
[providing no liability for the advertisers which had put advertisement on peer-to-peer websites offering illegal content because no intent to facilitate infringement was shown.]
 
 
[holding Tiscali liable under a regime of regular liability for hosting on its portal a blog featuring unauthorized reproduction of copyrighted comics owned by Dargaud because its function was that of a co-publisher, “particularly when allowing its users to create their personal web pages through its website and encouraging third parties to place advertisement directly on user’s page in order to generate additional revenue”.]
 
Cour de Cassation, Sedo GmbH v. Hotel Meridien, Stephane H.October 21, 2008 (affirming Hôtels Meridien v. Sedo, Stephane H., Paris Court of Appeal, March 7, 2007)
 
[holding Sedo, domain name selling platform, liable for assisting third parties bidding on famous trademarks]

 

Appellate Courts

 
TF1 v. DailyMotion, Court of Appeals of Paris, December 2, 2014
 
[The Paris Court of Appeals handed down a decision awarding €1.3M in damages to the French commercial TV broadcaster TF1 against DailyMotion, which failed its duty of promptly removing infringing materials from its platform. However, the Court stated that DailyMotion enjoys limitation of liability as a hosting provider and is not required to proactively monitor users' infringing activities.] [See also CIS blog post]
 
Licra, ACIT, CRIF v. Orange, SFR, Bouygues, Numericables, Darty Telecom, TGI Toulouse, April 11, 2014
 
[Court dismisses A.G.’s action aimed at taking down allegedly anti-Semitic blog “Joe Le Corbeau” based on lack of respect of formalities of 1881 law on freedom of press (lack of characterization and qualification of the incriminated speech).]
 
Bluetouff v. Anses, Court of Appelas of Paris, February 14, 2014
 
[blogger Bluetoof is held liable on the ground of fraudulent accessing and/or remaining on an automated data processing system further to the publication of confidential document of ANSES (national agency for food, environmental and occupational health and safety) that he had found on the Internet. the Court reversed the decision from the trial court which had considered that there could not be a fraudulent access if the data processing system was unprotected and freely available on Google.]
 
Overblog v. Paperblog, Court of Appeals of Paris, November 8, 2013
 
[blog aggregator paperblog is entitled to safe harbor protection because does not have control over, or prior knowledge of, content hosted.]
 
Youtube v. SPPF, Paris Court of Appeal, June 21 2013
 
[holding Youtube eligible under the hosting safe harbor and not liable for the re-posting of content already flagged as infringing. 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 of the Law for confidence in digital economy (reversing TGI Paris, Apr. 28, 2011).]
 
Google v. Jean-Baptiste D.V. et al, Lyon Court of Appeals, March 22, 2012
 
eBay International v. Burberry et al., Paris Court of Appeals, January 23, 2012
 
[eBay is not eligible under the hosting safe harbor because plays an active role in the promotion and follow-up of the sales. As a result, eBay is and liable for concealment/ handling stolen property.]
 
 
[Google is contributory liable on the ground of unfair competition, misleading advertising and illegal comparative advertising for having sold as Adwords to Cobrason’s main competitor, Cobrason’s trademarks thereby contributing to the confusion in the mind of the public.]
 
André Rau v. Google & Au feminin.com, Paris Court of Appeals, Feb. 5, 2011 (affirming TGI Paris 3e ch. 2nd section, Oct. 9, 2009)
 
[Google has an obligation not only to take down but also to make sure that an image identified as infringing does not reappear on its website (take down/ Stay down). Solution was revisited in above referred July 12, 2012 decisions of the Supreme Court.]
 
 
[Holding Google eligible under the hosting safe harbor. The Court held that the mere awareness by the intermediary that its service may be used for infringing activity was insufficient to make it liable if it had shown willingness to take down infringing content.]
 
Zadig Production v. Google Inc, Court of Appeals of Paris, December 3, 2010
 
Google at al. v. Syndicat Français de la litterie, Paris Court of Appeals, November 25, 2010
 
LVMH v. eBay, Court of Appeals of Paris, September 3, 2010 (affirming Commercial Court of Paris (T.C.), June 30, 2008)
 
[liability of eBay for third party’s sales.]
 
Hermes v. eBay, Court of Appeals of Reims, July 20, 2010
 
[holding eBay liable for sales by third party on its platforms of bags and items infringing Hermes’ rights.]
 
Dailymotion v. Nord Ouest Production et al., Paris Court of Appeals, ch. 4, sec. A., May 5, 2009
 
O. Martinez v. Bloobox.net, Court of Appeals of Paris, November 21, 2008 (reversing TGI Paris, March 2008)
 
[no liability of aggregator for third party content because did not have knowledge or control over such content.]
 
eBay v. DWC, Paris Court of Appeals, November 9, 2007
 
Google France v. Louis Vuitton Malletier, Court of Appeals of Paris , June 28, 2006
 
[Adwords case referred to the ECJ in Google France and Google v. LVMH.]
 
Google v. Viaticum and Luteciel, Versailles Court of Appeals, March 10, 2005
 
Estelle Halliday v. Valentin Lacambre, Paris Court of Appeals, 14th ch., February 10, 1999 (Gaz. Pal. 5-6 April 2000, jurisp. 19)
 
[early case law re. ISP liability (before e-commerce Directive) : holding hosting provider liable for hosting nude or semi-nude photos of famous actress.]

 

Lower Courts

 
[The High Court of Paris ordered ISPs to “implement all necessary measures to prevent access from the French territory to the music file-sharing site the Pirate Bay and its redirection sites and mirror sites.” The French Court acted upon a claim of the Société Civile des Producteurs Phonographiques [Civil Society of Phonogram Producers] (SCPP). he blocking order was issued on the basis of Article L336-2 of the French Code of Intellectual Property. The article implements Article 8(3) of the EU Information Society Directive by providing that “in the presence of an infringement of a copyright or related right caused by the content of a public online communication service, the high court [ . . . ] may order at the request of rights holders [ . . . ] all appropriate measures to prevent or stop such infringement of a copyright or related right, against anyone who might help to find a remedy to the infringement.” To enhance its effectiveness, the order covers also a list of specifically enumerated redirection sites, mirror site, and proxies.]
 
X v. Google Inc, T.C. (Commercial Court) Paris, January 28, 2014
 
[Google is subject to data protection law (loi informatique et liberte) and liable for breaching it when kept in Google suggest tools, personal information about art dealer (criminal charges for past activity) when the ex-convicted art dealer had asked Google to delete such information and showed that he had a legitimate reason to do so (breach to image and reputation, right to be forgotten).]
 
 
[ordering main French ISPs and search engines (Google, Microsoft and Yahoo! to block access and referencing to unauthorized movie streaming site.]
 
Google v. Mosley, TGI Paris, November 6, 2013
 
[Google is ordered to take down and stop referencing in its Google image tool for a duration of 5 years, 9 photos of Max Mosley which had already been held a breach to his privacy.] [See also CIS Blog post]
 
Bruno L. v. Google, October 23, 2013
 
[Liability of Google on the ground of general civil liability for refusing to delete from its Google suggest tool suggestions such as “crook” or “sect” associated with the name of a person, after this person had asked it to stop making these suggestions and for failing to inform users more clearly about the functioning of its “Google suggest” tool.]
 
Matthieu S. v. Twitter, TGI Paris, April 4, 2013
 
[Paris Court orders Twitter to provide personal identification information of fake Twitter profile, regardless of the fact that this information was hosted in the US.]
 
 
[Paris Court orders Twitter to (i) provide identification information of Twitter users who had created allegedly racist and anti-Semitic hashtags on the ground of French Civil Procedure regulation (legitimate reason to keep essential evidence) and (ii) implement simple alert system to flag this kind of content (a flagging system already existed but it was difficult to access and in English language only).]
 
eBay v. Maceo, TGI Paris, 3rd ch., 3rd Section, March 13, 2012
 
[eBay is eligible under the hosting safe harbor and neither the selling tools he is offering to increase the sales of its users nor the financial interest he is taking on each of these sales are enough to give him an active role in these sales.]
 
Olivier Martinez v. Google and Prisma Press, TGI Paris, November 14, 2011
 
[holding Google liable for breach of privacy resulting from its Adwords and Google suggest services, as a result of “knowledge” imputed to Google as a result of its “active role” in these two services.]
 
Andre Rau v. Google Images, TGI Paris, May 26, 2011
 
[Google is eligible under hosting safe harbor and not liable for future posting of same images (no take down/ stay down obligation). Moreover, linking is not reproducing and indexation of pictures on Google image is necessary to freedom of expression, not infringing use of image.]
 
 
Omar et Fred et al  v. Youtube et al, TGI Paris, 3rd ch, 1st section, September 22, 2009
 
Eva Herzigova v. Société de conception de presse et d’édition, TGI Paris, June 8, 2009
 
SARL Temps noir et al v. Youtube, Dailymotion, Google Inc., TGI Paris, 3rd ch, 3rd section, May 13, 2009
 
L’Oreal et al. v. eBay et al, TGI Paris, May 13, 2009
 
SA Direct Energy v. Google, Commercial Court of Paris (T.C.), May 7, 2009
 
Roland Magdane et al v. Youtube, TGI Paris (sum. Judg.), March 5, 2009
 
Jean-Yves Lafesse et al v. Youtube, TGI Paris, November 14, 2008
 
 
[holding eBay not eligible under hosting safe harbor and liable for third party’s infringing sales on eBay.]
 
Hermes v. eBay, TGI Troyes, June 4, 2008
 
Dahan v. Eric Duperrin (les pipoles.com), TGI Nanterre, February 2008
 
Flach Film & Les Editions Montparnasse v. Google France, Google Inc, Commercial Court of Paris (T.C.), February 20, 2008
 
TWD Industry v. Google France and Google Inc., Court of Appeals of Aix en Provence, December 6, 2007
 
Kenzo v. DMIS (Vivastreet), Commercial Court of Paris (T.C.) (Sum. Judg.), July 26 and October 31, 2007
 
Zadig Production v. Google Inc, Afa, TGI Paris, October 19, 2007
 
Christian C. and Nord Ouest production v. Dailymotion, TGI Paris, July 13, 2007 (reversed by Cour de Cassation Feb. 2011 – see above)
 
J. Y. Lafesse v. Google et al, TGI Paris, 3rd ch., 3rd section, June 24, 2006
 
GIFAM v. Google, TGI Paris, 2006
 
Société Viaticum, Luteciel v. Google France, TGI Nanterre, October 13, 2003
 
[early case law regarding ISP liability, holding Google liable for Adwords services.]
 
 
Greenpeace v. Esso, TGI Paris, July 8, 2002
 
Gervais Danone Co. v. M Olivier M., TGI Paris (sum Judg.), April 23, 2001 
 
RATP v. Valentin Lacambre et al, TGI Paris, 3rd ch, 3rd sec (sum. Judg.), March 21, 2000
 
Lacoste v. Multimania, Eterel and Cybermedia, TGI Nanterre, December 8, 1999 (affirmed by Court of Appeals of Versailles, June 8, 2000)

 

Administrative Decisions

Google Inc., no. 399922, Conseil d'Etat. July 19, 2017. 

This case refers to the geographical scope of delistings in "right to be forgotten" (droit au déréférencement) requests.

Google filed a complaint on the Conseil d'Etat against the decision of CNIL to fine the company in the amount of 100,000 Euros for failing to comply with the commission letter of formal notice. On the letter, CNIL demanded Google to delist search results on all the extensions of domain name of its search engine (google.fr; google.uk; etc...). CNIL considered the measures took by the company insufficient to ensure the data protection rights of European citizens.

In this decision, the Conseil d'Etat stayed the proceedings and referred three questions to the European Court of Justice (ECJ). The first question is if a search engine, when implementing the ECJ's Google Spain decision, must delist the content from the results page from all its domains (.fr, .com, .uk, etc...), including those outside the European Union. In the case the answer to this question is negative, the Conseil d'Etat asks if the search engine should be obliged to delist the content from its European Union domains. Finally, the Conseil d'Etat asks if the search engine, when implementing a delisting request, should use a geo-blocking technology to prevent the results from showing up the results page of any user coming from the territory of the person requesting the delisting or, more generally, from any European Union territory, independently of the domain extension used to perform the search.

 

Mme C, M. F, M. H, M. D, F, Conseil d'Etat. February 24, 2017. 

With this decision, the Conseil d'Etat refers to the ECJ questions about the implementation of the "right to be forgotten", based on four requests refused by Google, brought to CNIL and refused by the Commission, and then brought by the claimants to the Conseil.

The Conseil d'Etat seeks clarification on the interpretation of the Google Spain about the obligations of a search engine to delist search results pointing to web pages that contain sensistive data - as defined in the EU Directive 95/46/EU (the Data Protection Directive)

 

Deliberation No. 2016-054CNIL, March 10, 2016

According to the French Data Protection Authority (CNIL), by the date of this deliberation Google has processed approximately 80,000 requests of French citizens to delist specific results from its search engine (right to be forgotten requests). The decision affirms the company delisted 51,5% of the requests. To address the complaints of French citizens who had their requests refused, CNIL launched an investigation on the company. Following the assessment of the complaints, CNIL requested Google to delist several results. According to the authority, "it was expressly requested that the delisting should be effective on whole search engine, irrespective of the extension used (.fr; .uk; .com ...). As the delistings were carried out in European extensions, and not in extensions such as google.com or other non-European versions of the search engine, the president of CNIL issued a note to proceed (in May 21, 2015), ordering the company to comply with this determination in a period of 15 days, issuing a public communication about it in June 12, 2015. 

Google appealed this decision, but the appeal was rejected by CNIL in September 16, 2015, with CNIL initiating a sanction procedure against Google in September 25.

Considering the right granted to individuals to erase inaccurate data (article 12 of the Directive) and to oppose, for legitimate reasons, the processing of their data (article 14 of the Directive), and taking into consideration the Google Spain decision in CJEU, CNIL argued that the Directive seeks to effectively protect the fundamental right to data protection, without circumvention. CNIL responded to Google's assertion that CNIL exceed its power by imposing a measure with extraterritorial effects by affirming that the search engine performs a single treatment of data, and not different treatments of data when the queries are made using different extensions.

The company also argued that the decision affected the sovereignty of foreign states and would violate the rights to freedom of information and freedom of expression. CNIL dismissed these claims by affirming that the right to oppose and erase is attached to the person and, when applied, must be effective without restriction. CNIL also stated delisting decisions are only taken after if the conditions specified in the Google Spain case were met, including the proportionality test designed to ensure the balance of data protection rights with those of access to information and freedom of expression.

Finally, CNIL considered that the use of the IP addresses (proposed by Google) to determine the delisting of results would be insufficient, as would allow the treatment of data from outside of the European Union and could be easily circumvented.

Taking all into consideration, CNIL imposed a fine of 100,000 (one hundred thousand euros) to Google. The company appealed the decision to the French Conseil d'Etat in May 19, 2016.

 

OTHER RESOURCES

Béatrice Martinet Farano, Internet Intermediaries' Liability for Copyright and Trademark Infringement: Reconciling the EU and U.S. Approaches (TTLF Working Papers No. 14, Stanford-Vienna Transatlantic Technology Law Forum, 2011)
La Quadrature du Net, WIKI page: Jurisprudence sur la communication en ligne, https://wiki.laquadrature.net/Jurisprudence_sur_la_communication_en_ligne [featuring many important decisions regarding ISP liability and online communication]
Legifrance, http://www.legifrance.gouv.fr [publishing most of the major French decision]

CONTRIBUTORS

Beatrice Martinet
Email: beafarano at gmail.com

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