June 26 2008
The website Fuzz.fr has been found liable as a publisher for posting a link directing users to a separate website that contained gossip about French actor Olivier Martinez’s relationship with singer Kylie Minogue. Like the well-known website Digg.com, Fuzz.fr allows users to share web content. As a result of the massive growth of collaborative websites, know as ‘Web 2.0’ sites,(1) the number of French law suits involving them has increased dramatically. One of the main issues faced by French courts is determining liability for illicit user-generated content. Web 2.0 websites claim legal protection as hosting service providers, but aggrieved third parties argue that these sites should be regarded as publishers. The increasing complexity of the role of Web 2.0 sites has blurred the distinction between hosting service providers and publishers. The Fuzz.fr Case illustrates the difficulty encountered by courts in defining the boundaries between these two different types of website.
In an interim injunction dated March 26 2008,(2) the Paris Tribunal of First Instance held that Fuzz.fr was a publisher rather than a hosting service provider, and was therefore liable for publishing information about Martinez's private life. Fuzz.fr was ordered to pay €1,000 in damages. The legal action led to the closure of the website.
French rules governing internet liability are largely based on the distinction between publishers and hosting service providers. The Law on Confidence in the Digital Economy of June 21 2004(3) created separate legal statuses for publishers and hosting service providers, and introduced liability protections for the latter. On the one hand, it extended the criminal liability regime applicable to press law violations to publishers,(4) which it defines as “persons engaged in the business of publishing online communication services”.(5) In addition, the law provides that publishers are liable as the main perpetrator “where the litigious message was fixed before its dissemination to the public”.(6) On the other hand, the Law on Confidence in the Digital Economy exempts hosting service providers from liability for information stored on hosted pages if:
“[they] did not effectively have knowledge of [the] unlawful character [of the stored information] or of [the] facts and circumstances making the unlawful character apparent or if, upon having knowledge thereof, they took prompt action to remove or disable access to such data.”(7)
In characterizing Fuzz.fr as a publisher, the court noted that the website was constituted of various sources of information, about which users could learn more by clicking on a hyperlink redirecting them to the source website. Hence, the court found that the site was to be regarded as a 'publisher of online communication services' within the meaning of the law, as Fuzz.fr made an “editorial decision” by: (i) placing links on its website to ‘celebrites-stars.blogspot.com’, which contained gossip about Martinez; and (ii) arranging the various information sections of its website and posting a title referring to Martinez’s private life, thus determining “the organization and presentation of the site”.
The court concluded that the act of publication was not to be understood as a mere material act, but as “the intent to put the general public in contact with messages of [Fuzz.fr’s] choice”, and held Fuzz.fr liable as the publisher of information that violated Martinez’s right to privacy.
The Fuzz.fr ruling is in line with a previous decision rendered by the Nanterre Tribunal of First Instance involving the aggregator website lespipoles.com.(8) In that case a French filmmaker filed a lawsuit against the owner of lespipoles.com for linking to a website containing information on the filmmaker’s alleged relationship with actress Sharon Stone. The court ascertained that lespipoles.com syndicated various sources of information on its website. It found that the content available on the website was composed of titles of articles, abstracts and hyperlinks, such content being brought to the website using really simple syndication (RSS) technology.(9)
The court upheld the characterization of lespipoles.com as a publisher on the grounds that the website had subscribed to the RSS service and had presented it in a specific and pre-established manner, which constituted an 'editorial decision'. The owner of the website was thus liable as a publisher for the privacy violation.
Over the past two years, French courts have repeatedly been called upon to define the boundary between hosting service providers and publishers with respect to the operators of Web 2.0 sites. The courts have had difficulty drawing a clear boundary.
One trend is the tendency, as in the Fuzz.fr Case, to characterize Web 2.0 sites as publishers. Two decisions, Tiscali Media(10) and MySpace,(11) first showed the intent of certain courts to apply the publisher characterization to any service provider that (i) organizes a hosting structure to publish stored information, and (ii) financially exploits Web 2.0 sites through advertising revenues.(12) The Fuzz.fr and Lespipoles decisions have adopted a similar approach by taking into account the structured character of the sites to characterize them as publishers of user-generated content.
Another trend diverges from the first with the result that similar Web 2.0 sites are characterized as hosting service providers. In the 2007 DailyMotion(13) and Google Video(14) cases, the courts did not find the criteria of advertising and of the structuring of the websites dispositive, instead finding the sites to be hosting service providers on the grounds that they did not initiate the dissemination of their hosted content, which is the essence of a publisher’s role.
Therefore, contrary to Tiscali Media and MySpace, the judges used the passivity of the websites as to their content to classify them as hosting service providers. This is the reasoning used to uphold the hosting service provider characterization of Wikipedia(15), of a chat forum(16) and of eBay(17). A new DailyMotion(18) ruling dated April 15 2008 has also recently illustrated this trend. Finding that the publisher is the person who determines the content to be made available to the public, the court held that DailyMotion is a hosting service provider since it neither determines nor controls the content of material posted on its site.
The Fuzz.fr decision has created quite a stir in the media and on the Internet. In particular, a report on the implementation of the law submitted by two members of Parliament on April 16 2008(19) points out, while commenting on Fuzz.fr, that because the law introduced the distinction between hosting service providers and publishers, “case law must not deprive this distinction of all meaning”.
The Fuzz.fr ruling may be challenged on various technical grounds.
Fuzz.fr aggregates news submitted by users. Users participate collaboratively by selecting and voting for the content that they find most interesting. Such votes determine the order in which news appears; the articles with the most votes appear high up on the homepage, while the articles with the fewest votes are much further down and eventually drop off the website. It thus appears that the dissemination of content is initiated by users and that Fuzz.fr has no control over the content posted on the website. In addition, the content is organized by voting and by the users' actions through the use of automated classification tools. The owner of Fuzz.fr, who has appealed the decision, has publicly challenged the decision by emphasizing Fuzz.fr's passive role and by comparing the site to an “automated forum”. For these reasons, many in the internet world tend to regard Fuzz.fr as a mere web hosting service provider.
The same rationale may be partly applied to the Lespipoles decision. The website’s role was limited to selecting and subscribing to an RSS flow, which automatically downloaded updates to the website. It thus appears that Lespipoles.com did not initiate the dissemination of specific content and had no control over such content.
Moreover, in order to characterize Fuzz.fr and Lesipoles.com as publishers, the court implicitly found that the litigious content had been fixed before its dissemination to the public, as required by law, relying on the combination and specific presentation of information sources on the websites. Whether the condition of prior fixation of the content is met is arguable; the content on Fuzz.fr is directly posted by users and lespipoles.com downloads content straight from a feed using RSS technology.
The precedential value of the Fuzz.fr decision is limited since it is an interim injunction rather than a full decision on the merits. Nevertheless, it shows that the scope of liability of Web 2.0 websites is an unsettled point of law. Although the author of the report on the implementation of the law recommends modernizing it to determine more precisely the boundaries of the hosting service provider characterization by taking into account the diversification of web roles, the government is opposed to changes to the law.
In the meantime, many new court decisions upholding the diverging trends are expected, which will continue to make life unpredictable for Web 2.0 site operators.
For further information on this topic please contact Bradley L Joslove or Vanessa De Spiegeleer-Delort at Franklin by telephone (+33 1 45 02 79 00) or by fax (+33 1 45 02 79 03) or by email (email@example.com or firstname.lastname@example.org).
(1) 'Web 2.0' is a term used to describe the latest evolution of the web and is characterized by a new generation of web-based communities and services, such as social networking sites, wikis (collaborative reference sites that anyone can edit), blogs and folksonomies (sites that allow users to label and categorize content, generating final categories by combining the input of all users). All of these sites aim to facilitate content creation and collaboration, by creating an architecture of participation that encourages users to add value (ie, content) to the sites they visit.
"Although it is indisputable that the defendant has the technical functions of a hosting service provider, it did not limit itself to that technical function; indeed, because it imposes a presentation structure with frames, which it obviously makes available to its hosted members, and broadcasts advertisements upon each visit of the webpage, from which it obviously profits, it must be regarded as a publisher and must be liable as such."
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