In a recent decision dated 11 December 2013, the Paris Court of Appeal confirmed that Google is a mere provider of hosting services within the meaning of the e-commerce directive and can hence benefit from the limited liability regime associated with this status.
This case involved a French actor who sued a press editor in 2008, Prisma Presse, as well as Google France SARL and Google Ireland Limited to obtain compensation for the loss allegedly sustained as a result of the publication of a press article and two photographs which violated both his right to privacy and his right to control his image.
In a judgment dated 14 November 2011, which was handed down after the decision of the pivotal CJEU of 23 March 2010 in the AdWords case (C-236/08 to C-238/08, Google Inc., Google France vs. Louis Vuitton Malletier and others), the Paris Civil Court ruled that Google could not benefit from the limited liability regime of hosting services as defined by Article 6-I-2 of the Law dated 21 June 2004 relating to Confidence in the Digital Economy (LCEN) which implements the e-commerce directive no. 2000/31/EC of 8 June 2000 into French law. As a result, Google was held jointly liable with the press editor for having displayed, in the scope of its paid referencing system AdWords, a commercial link towards the litigious press article when the plaintiff’s name was used as a keyword in the search engine.
Google lodged an appeal against this decision whereas the press editor, Prisma Press, did not. The Paris Court of Appeal overruled the first instance decision with respect to Google. The Paris Court of Appeal first recalled the decision handed down by the CJEU in the AdWords case of 23 March 2010, in which the CJEU considered that national Courts should interpret Google’s role and status on a case by case basis. The Paris Court of Appeal insisted that neither the fact that the AdWords referencing system is a paid service, nor the fact that Google gives general information and advice to its customers are sufficient to deprive Google from the benefit of the provider of hosting services status. In the present case, the Court noted that only the press editor, Prisma Presse, drafted the content of the advertisement and chose the keywords to be associated with such advertisement. Nothing in Google AdWords’ General Terms and Conditions could establish that Google played any role in the drafting of the advertisement or in the choice of the keywords. On the contrary, Article 4.1 of these General Terms and Conditions provides that the customer is solely responsible for the targets of the advertising messages and for the information available on the web pages. As such, Google had no knowledge of and no control over the content of the ad and the choice of the keywords. It stems from this concrete and objective analysis of the facts of the case that Google can benefit from the special regime created in favour of providers of hosting services by the e-commerce directive as it does not play any active role.
The Paris Court of Appeal then noted that a formal notice was received by Google on 21 March 2008 and that the litigious advertisement was withdrawn on 28 March. The Court hence ruled that Google complied with its obligations as provider of hosting services and committed no fault as the advertisement was duly taken down. The Paris Court of Appeal consequently dismissed all the plaintiff’s claims against Google.
This decision shows that French Courts adopt a concrete and objective analysis, on a case by case basis, in order to assess whether the hosting provider regime is applicable. In addition, the French Supreme Court strictly requires that French Courts assess whether this regime is applicable. For instance, in a decision dated 29 January 2013 (no. 11-21.011), the French Supreme Court quashed a decision handed down by the Paris Court of Appeal regarding Google AdWords, on the ground that the Court of Appeal should have answered the argument according to which Google should benefit from the limited liability regime of providers of hosting services as defined the LCEN.