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Take down, stay down: Paris Court of Appeal confirms hosting providers have no general monitoring obligation

In a recent decision dated 21 June 2013, the Paris Court of Appeal endorsed the reasoning adopted a year ago by the French Supreme Court in three decisions involving Google (French Supreme Court, 12 July 2012, no. 11-13.666, 11-15.165/11-15.188, 11-13.669) and decided that there is no obligation for providers of hosting services to prevent the reappearance of contents they have already taken down (often referred to as “notice and stay down” principle), except if they are formally notified by rights-owners (http://www.hoganlovells.com/french-supreme-court-invalidates-take-down-and-stay-down-rule-11-07-2013/).

The SPPF (Société des Producteurs de Phonogrammes en France) is a French company which is in charge of the collective administration and protection of record and video producers’ rights. In May 2008, the SPPF noticed that several videos and music belonging to its register were made available online on YouTube without the authorisation of the rights-owners. Following receipt of several notices, YouTube promptly withdrew the litigious contents from its website. Several months after that, the SPPF noticed that most of the contents that had been taken down had reappeared on YouTube. Therefore, the SPPF sued YouTube notably to get compensation for the loss sustained by the rights-owners and to compel YouTube to make sure that the litigious contents would not reappear for a 10-year period.

On 28 April 2011, the Paris Civil Court rejected the SPPF’s claims on the ground that YouTube was not liable as a hosting provider for the reappearance of the contents hosted. The Paris Civil Court notably pointed out that the SPPF had refused YouTube’s offer to subscribe to “Content ID” which is a technology comparing videos uploaded to YouTube against reference files provided by rights-owners. The SPPF lodged an appeal against this decision on the ground that YouTube had been negligent as it had to prevent the reappearance on its website of the litigious contents, especially through the use of the “Content ID” technology.

The Paris Court of Appeal, in its decision dated 21 June 2013, confirmed the judgment of the Paris Civil Court. The Court notably stated that, pursuant to both the e-commerce Directive no. 2000/31/EC and French implementing provisions (Law no. 2004-575 dated 21 June 2004 for the confidence in digital economy, “LCEN”), only national judicial authorities can require providers of hosting services to monitor the contents they host, provided the hosting is temporary and limited in its scope (Article 6-I-7 of the LCEN and recital 47 of the e-commerce Directive). Indeed, the general principle must remain that providers of hosting services do not have the obligation to monitor the contents they host. It stems from this that the withdrawal of a content is in any case subject to the receipt of a formal notice by the provider of hosting services; this is the case even though the said content may, in the past, have been noticed. If providers of hosting services were compelled to withdraw contents reappearing online following a first notice, it would amount to a general monitoring obligation, which is expressly prohibited by the e-commerce Directive.

The Paris Court of Appeal also rejected the SPPF’s claim to compel YouTube to prevent the reappearance online of contents already notified and withdrawn during a 10-year period, on the grounds that this claim was imprecise, and neither temporary nor limited in its scope.

Interestingly, the Paris Court of Appeal goes even further than the French Supreme Court in considering that SPPF committed a fault when it refused to subscribe to the “Content ID” technology offered by YouTube. Not only was it not YouTube’s duty to generate referenced files of the contents hosted without any control of the rights-owners but refusing to use a reporting tool system offered by a provider of hosting services can be considered as a fault on the part of rights-owners.

This decision is an important one as the Paris Court of Appeal confirmed and implemented the decisions adopted one year ago by the French Supreme Court, which stroke a fair balance between the rights and obligations of providers of hosting services on the one hand, and rights-owners on the other.