Looking back and forward
Since the Internet entered in home in the 1990s, our relationship with cyberspace has evolved : we have moved from a libertarian philosophy to the application of our real law in the virtual world, and finally, to the need to make the actors of the Web accountable.
The whole challenge of the legal framework of the cyberspace can be summed up in one word : adaptability. Over the last 20 years, legislators and judges have constantly adapted the legal framework of the liability of technical intermediaries to the Web evolution in France and within European Union.
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us.”[1]
This was the philosophy of cyberspace at the time of the advent of the Internet: the promise of a new universe in which no political control is possible and where freedom is the rule.
But quickly, faced with the excesses of bad behaviour on the Internet, it became necessary to apply real world law in the virtual world. In France, the first decision that marked the end of the libertarian philosophy of the web concerned copyright[2]. On that occasion, the judges affirmed that there is indeed infringement of copyrighted works when they are made available to Internet users without the authorisation of the rights holder.
Once it had been established that real world law should also govern the virtual world, the question then arose was whether Web actors should be held liable for damage to the rights of third parties caused by the dissemination on the Internet of illegal content provided by their customers.
Initially, French judges considered that hosting providers were bound by an obligation of vigilance[3]. In « Estelle Hallyday v. Alter » case, intimate photographs had been posted on Internet through the server of the hosting company Altern.org. French judges enjoined the defendant to make impossible to disseminate the photographs on the sites it hosts, because they considered that the host « clearly exceeds the technical role of a simple transmitter of information » and must « obviously assume, with regard to third parties whose rights would be infringed (…) the consequences of an activity that it has deliberately undertaken to carry out (…) »[4]. By this decision, the French judges chose to make Web actors responsible for the consequences of their economic activities on the Internet.
This case law was part of an awareness’ movement, at the end of the 1990s, of the growing power of technical intermediaries on the Internet. In 1999, in response to John Perry Barlow’s Declaration, the American jurist Lawrence Lessig published a book entitled Code is Law in which he demonstrated that the libertarian logic of the Internet is only an utopia and that cyberspace is indeed regulated by the Code: it creates normativity in cyberspace. For lack of being regulated by law, cyberspace is therefore framed by the codes established by private companies of the web. Then the regulation of the web was left in the hands of private interests.
The public authorities, taking the measure of the ongoing digital revolution, have taken up the subject in order to regulate the responsibility of the technical service providers involved in setting up and distributing services on the Internet. In 2000, the European Commission, inspired by the US legislation on copyright in the information society[5], adopted the so-called E-commerce Directive[6]. In France, this directive was transposed by the law for Confidence in the digital economy known as the LCEN[7].
Unlike the French judge, the European legislator has opted for a more lenient liability regime for technical intermediaries: they are not bound by a general monitoring obligation for information they transmit or store[8].
The mere conduit and caching providers enjoy a kind of immunity regarding the information circulating on their networks. Indeed, the law provides that the access provider is not responsible for the content, unless it leaves its role of mere conduit or caching provider.
The hosting provider will not be liable for the content stored on its servers under two cumulative conditions : firstly, it must not have knowledge of the illegal activity or information – knowledge of the litigious facts is presumed to be acquired by the host when it is notified of certain elements provided for by the law[9] – and, secondly, as soon as it has knowledge of them, it must act promptly to remove the information or make access to it impossible. Compared to French common law on civil liability, hosting providers benefit from a lighter liability. However, they lose this benefit if the two conditions are not fulfilled.
Finally, the editorial service provider who makes pages available to the public on the Internet and which he controls the content, is subject to an obligation of monitoring the information he publishes. The editor will thus be considered responsible for all illicit content on his website[10].
The question of the liability of the various Internet actors has brought to light a new problem: the identification of the technical intermediaries, in particular distinguishing a host from an editor. If the qualification of host or editor is that important, it is because it determines the liability regime. And regarding the lighter liability of the hosting provider, it is in the interest of the Web actors to be identified as hosts by the judges. If it is so thorny, it is because the development of Web 2.0 has highlighted the fragility of the categorisation established by the LCEN. However, case law has succeeded in identifying the criteria for qualifying a hosting provider: the criteria of data storage as the main activity carried out by the site and the criteria of the passive role of the host in its storage activity with regard to the content stored[11]. On the contrary, the free or paid nature of the service and the presence or absence of advertising on the site concerned are ineffective in identifying a host. According to this jurisprudence, the following sites have been recognised as hosts: the video sharing sites Dailymotion, Fuzz or Amen[12], search engines such as Google[13], the e-commerce platforms eBay and Amazon[14], or the social network Facebook[15].
In 2019, in order to fight against the piracy of copyrighted works on the Internet, the European Commission adjusted the liability regime of sharing[16]. A new type of host was created: the « provider of online content sharing services » (i.e. YouTube, Instagram, TikTok). This is a host whose main objective is to store and give the public access to a large quantity of copyrighted works that have been uploaded by its users. According to Article 17 of the Directive, a platform which provides public access to a protected work uploaded by its users must obtain prior authorisation from the right holders. In the event that no authorisation has been granted, a derogatory liability regime applies to providers of online content sharing services: they are liable for unauthorised acts of communication to the public. In other words, Article 17 of the DANUM Directive breaks with the E-commerce Directive’s philosophy, because the DANUM Directive imposes targeted monitoring of uploaded content to prevent the posting or re-posting of illegal content. This obligation to monitor sharing platforms technically takes the form of preventive filtering mechanisms. The Republic of Poland, considering that these mechanisms violate the freedom of expression of platform users, initiated an action for annulment before the CJEU. The latter took the opportunity to confirm the legality of the liability regime for providers of online content sharing services, particularly regarding the absence of a general monitoring obligation for technical intermediaries[17].
Twenty years after the adoption of the E-commerce directive, the distinction of technical intermediaries into three categories seems to be inadequate. Indeed, since 2000, new web actors have appeared: social networks, search engines and e-commerce platforms. The European Union has drawn the consequences of this digital evolution by adopting the Digital Services Act[18] in order to modernise the legal framework laid down by the E-commerce directive. The DSA is applicable to the already known intermediary services: mere conduit, caching and hosting services. However, the DSA innovates in the categorisation established by the E-commerce Directive because the Regulation now creates sub-categories of hosting providers: 1) classic hosting providers as provided by the E-commerce Directive, 2) online platforms and search engines, and 3) very large online platforms and very large search engines (with a monthly number of recipients in the EU of 45 million or more).
The main principles governing the civil liability of technical intermediaries laid down by the E-Commerce Directive are retained by the DSA, whereas the opposite solution was adopted by the Copyright Directive regarding providers of online content sharing services. Thus, technical intermediaries retain their lighter liability for the information they transmit, store or host and the cases law defining the contours of the host are not, in principle, challenged.
Moreover, the DSA innovates by imposing specific obligations on technical intermediaries according to a five-tier pyramid scheme depending on the activity of the intermediary: intermediate service providers, hosts, online platforms, e-commerce platforms, and together very large online platforms and very large search engines.
By adapting the categories of technical intermediaries, the European legislator has taken the measure of the evolutions of Web 2.0. Moreover, today, these categories are broad enough to capture new digital actors emerging with the Web 3.0, such as the Metaverse of the Meta company, which is considered as a platform within the meaning of the DSA.
Finally, the next challenges facing European and French judges and legislators will be, not to categorize the new actors of the Web, but to determine what roles they play in the infringements that occur on their networks to know whether the lighter liability regime should be applied or not[19]. As such, French lawyers have an important role to play in defending the interests of Web actors, whether they are provider or recipient, by taking into account the technical and legal evolution. These reflections are even more relevant when we see the increasingly active role that technical intermediaries play in our daily lives.
Corinne Thiérache, Partner
[1] John Perry Barlow, A Declaration of the Independence of Cyberspace, February 8th, 1996, wrote in response to a US law aimed to censor certain content and limit freedom of expression on the Internet
[2] TGI of Paris, August 14th, 1996; n°60138/96 ; « Ecole centrale de Paris et ENSPTT v/ Brel and Sardou »
[3] TGI of Paris, June 9th, 1998; JCP E 1998.953; « Estelle Hallyday v/ Altern.org »
[4] Court of Appeal of Paris, February 10th, 1999; n°1988/16424 ; « Estelle Hallyday v/ Altern.org »
[5] Digital Millennium Copyright Act (DMCA) adopted on October 8th, 1998
[6] Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market
[7] Law n° 2004-575 of 21 June 2004 for confidence in the digital economy
[8] Article 6.I-7 LCEN
[9] Article 6.I-5 LCEN
[10] Law n° 82-652 of July 29th, 1982, on audiovisual communication and Law of July 29th 1881 on the freedom of the press
[11] CJEU, March 23rd, 2010; C-236/08, C-237/008, C-238/08 ; “Google France SARL and Google Inc. v/ Louis Vuitton Malletier SA and Others”.
[12] Court of Cassation, February 17th, 2011; n° 09-67896, n°09-13202, and n°09-15.857
[13] Court of Cassation, July 12th, 2012; n°11-13.666
[14] Court of Cassation, May 3rd, 2012; n° 11-10.505, n°11-10.507, and n°11-10.508
[15] TGI of Paris, April 13rd, 2010; “Giraud v/ Facebook France
[16] Directive 2019/790 of April 17th, 2019, on Copyright and related rights in the Digital Single Market transposed in French Law by and Order n° 2021-580 of May 12th 2021
[17] Court of Justice of the European Union, April 26th 2022; C-401/19
[18] Regulation 2022/2065 of October 19th, 2022, on a Single Market For Digital Services and amending Directive 2000/31/EC
[19] About a trademark infringement, see CJUE, December 22nd, 2022 ; C-148/21 and C-184/21 ; « Louboutin v. Amazon »