France: Dailymotion & Fuzz – Covered by Hosting Safe Harbour
On 17 February 2011 the French Court of Cassation recognized the hosting status of Dailymotion and Fuzz.fr. The court also confirmed, in relation to the Amen website case, that the judges had to verify that the content withdrawal requests observed the requirements of LCEN (loi pour la confiance dans l’économie numérique – French implementation of the EU E-commerce Directive) before condemning a hosting site that had not withdrawn promptly the notified content.
The decisions of the Court of Cassation establish clearly the boundary between a content hosting site and a web service editor. In the Dailymotion case, it comes to confirm the decision of the French Court of Appeal of May 2009 which overturned a 2007 court decision that considered the hosting site liable for the content posted online on its platform. Moreover, the site had responded immediately after having been notified that it was hosting illegal content.
The Court of Cassation also overturned the decision against Fuzz.fr in the case introduced by actor Olivier Martinez. In 2008, a French court decided that the owner of the website had an editorial responsibility, even if the website was a digg-like service (where the users can vote which news comes on first) and forced him to pay 1000 euro in damages for infringing the actor’s privacy and an additional 1500 euro in legal fees. The Court of Cassation considered fuzz.fr a hosting site in terms of LCEN and therefore not liable for the content posted on it.
Huťko applauds (such a long “French” struggle) and reckons that covering YouTube-like (Dailymotion) and Digg-like (Fuzz.fr) services by hosting safe harbour (art. 14 of e-commerce directive) is the correct interpretation. There is only one downside of this case … Huťko can’t read French.