By Florence Chafiol-Chaumont

On July 3, 2008, the Tribunal de Grande Instance of Paris ruled that search engines were to be considered as hosts, therefore rejecting the qualification of publisher and liability deriving thereof by law. The website in question allowed users to research videos, classified by type, and to view them through a link leading them to the peer-to-peer or "community" website "Dailymotion". These videos were being broadcasted without the consent of their right holders, who sought to impose liability on the search engines as content publisher. The court considered that "a search engine does not generate any content but only gives Internet users answers to the questions they phrase through key-words they chose, and useful links to reach the information asked for". As it did not generate any content, the offending website acted, according to the court, as a "host" as defined in the Loi pour la Confiance dans l'Economie Numérique (LCEN) of June 21, 2004. Therefore, it could not be held liable unless it was informed of the presence of obviously unlawful content and it did not promptly remove such content or make its access impossible.

The arguments developed by the court in this ruling are the same as the arguments in Dailymotion -v- Lafesse and Dailymotion -v- Omar et Fred (TGI de Paris, April 18, 2008), that is to say that "classifying files offered to the public according to a ranking chosen by the sole website creator does not give the latter the statute of publisher, as long as he does not choose the content of the files put online" and that "the selling of advertising spaces cannot allow the qualification of the website as a content publisher since nothing in the law forbids hosts to make profits out of its websites by selling advertising spaces".

Thus, after a short period of doubt on the legal qualification applicable to community websites and their spin-offs, a period during which some courts applied an extensive understanding of the definition of "website publisher" in order to retain their owners' liability, it seems that judges are now following a stricter understanding of the LCEN so as to avoid community websites' liability to be automatically engaged on the grounds of the contents they offer.

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