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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