France: 2 court cases about liability of intermediaries
While the E-commerce directive (2000/58/EC) is not yet transposed, in France the liability of intermediaries is decided via jurisprudence. In April the owner of the discussion-website percussions.org was convicted to pay half of the legal costs made by the company Eurodim, because a visitor of the website posted a negative message about the head of the company. In the posting, he accused the manager of selling his African percussion instruments for way too much money and generally being better in marketing than teaching. The message appeared in September 2002. The CEO responded in April 2003, 6 months later, with a liability notice. The site-owner immediately removed the posting and handed-over the IP-address of the poster, but was still convicted to pay half of the costs 'for equity-reasons'.
When it comes to search engines, French courts are clearly rejecting liability for intermediaries. In May, the same Paris court (Tribunal du grande instance de Paris) decided that Wanadoo could not be held liable for the results produced by its search engine Voila. The 20-year old singer Lorie was very upset about a website showing a photo-edit of her face on top of the naked body of a 16-year old girl. A few days later, in the case of Matelsom versus Altavista, the Paris Appeal Court came to the same conclusion. They rejected the claim that Altavista should stop sending visitors to the website of a competitor. According to Matelsom, competitor Literitel had wilfully imitated their website and Altavista should stop misleading potential customers.
The draft e-commerce law (Loi relative a l'economie numerique" or LEN in French) is currently discussed in the Senate (See also EDRI-gram nr 2). Nor this draft law nor the E-Commerce Directive touches on the liability of search engines. In July, the Forum of Rights on the Internet published a set of recommendations on the liability of editors of discussion groups. According to this expert group, liability should depend on how closely the editor is involved in the publication. In case of moderated newsgroups, editors should not be treated like paper publishers, but in a way more similar to hosting providers. That way they only risk liability if they don't act after having received a clear notification. The group acknowledges the paradox in it's advice, that moderators of internet discussions run a higher risk of being held liable than owners of unmoderated discussions, but can only advise courts to judge on a case-by-case basis. Remarkably, the group warns organisers of discussion groups never to hand-over user data (like e-mail and/or IP-addresses) to private parties, but only to designated legal or administrative authorities.
About Eurodim vs Percussions.org
Lorie vs Wanadoo (12.05.2003)
Appeal case Altavista vs Matelsom (15.05.2003)
Recommendations Forum of Rights on the Internet (in French, 08.07.2003)