French Court ordering Selfie-Takedown

From the Maw-Law Blog: “On December 12, 2015, Brahim Zaibat, a dancer and choreographer, posted on social media a selfie he had taken two years ago, showing him in an airplane, just a seat behind the one where Jean-Marie Le Pen, the honorary president of the French National Front, had fallen asleep. …” Read more at: http://www.maw-law.com/uncategorized/selfie-privacy-freedom-speech-collide-france/

Hadopi brings first cases before French Court

Users risk being disconnected from the Internet for up to one month and fines of 1.500 euros.

“Cest fait. Les premiers dossiers dabonnés à internet ayant reçu plusieurs avertissements de lHadopi ont été envoyés aux parquets. Ils risquent 1 mois de suspension de leur accès à Internet et 1500 euros damende. La pédagogie laisse maintenant place au contentieux.”

Source: Numerama.

Top 3 Illegal behavior by French youngsters

Minors in France have demonstrated a great lack of understanding what is and what isn’t allowed on the Internet. Top illegal behaviors are hate speech, false alerts of violence and pedo-pornography.

“La plupart des infractions relevées pour les mineurs sont l’incitation à la haine raciale, les fausses alertes de violences et la diffusion d’images pédo-pornographiques, assure ainsi un enquêteur. Des affaires de professeurs harcelés par leurs élèves sur internet, de jeunes insultés par leurs camarades sur la toile, ou bien ceux dont les photos dénudées se retrouvent sur certains réseaux sociaux, sont aussi monnaie courante.”

See: OWNI.fr [FRENCH]

France considering to implement a general tool of surveillance?!

Despite the recent ECJ decision (Sabam case), the French government still seems to desperately implement measures to prevent online file sharing. Two initiatives might be taken: (a) creating a blacklist of sites that should be blocked; and (b) Deep Packet Inspection of all Internet traffic (which would not only cost up to 520million euros, but more importantly blatantly ignore fundamental civil rights such as privacy and freedom of expression)!

Source in French: Surveillance du streaming : la crainte d’un filtrage généralisé

Libel Tourism in the Internet Age

The Internet has solidified the meaning of ‘regardless of frontiers’  (in art19 UDHR), and online disputes almost always have some sort of extra-territorial/cross-border element. In defamation cases specifically, this complexity can be seized as an opportunity to bring one’s case before a court in a more favorable jurisdictions (libel tourism). Even if ties with the place of the Court are negligible in practice, many (often rich/powerful) actors ‘abuse’ the nature of the Internet (and the inadequacy of the law) to have more chance of winning their case. Europe seems to be the most preferred location to bring defamation cases (processing about 700 cases on average per year, per country).

It must be said however, that in strictly European cases, the ECJ has ruled (in an offline case) that in cases brought before a court in the jurisdiction where the material is distributed (not necessarily where publisher is ‘established’), claims must be limited to damages resulting from the amount of copies distributed within that specific forum. In other words, even though X sues in Canada because of its more favorable legal framework, damages will only cover ‘harm’ in Canada (however, with regard to injunctions, influence reaches beyond the national borders, as an order to block content by a Canadian judge a priori also removes access to that content in other countries).

The UK – undoubtedly exploited the most by libel tourists – has a similar national rule. UK Courts will not refer cases to other jurisdictions (even though the courts of another country are a clearly more appropriate forum) if claimants limit their claim to remedy for publication in England alone. Only when the claimant does not have a ‘substantial reputation/business interests’ in England, Courts will deny jurisdiction. Currently, English Courts consider anything on the Internet to ‘be published in the UK’ whenever it can be downloaded in England (no ‘targeting’ requirement).

On the Internet, however, the limitation in scope of remedies (to what is published in England alone) is impracticable. In the widely debated case Bin Mahfouz v Ehrenfeldlegal proceedings were brought before an English Court for a book exclusively marketed in the US (only 23 books were sold in the UK through the web and the publisher made the first chapter available online). Ehrenfeld did not defend, due to lack in resources and she lost the case (she was ordered to pay around £115,000 and an injunction was issued against publication in the UK and against putting the first chapter online). In other words, this English decision severely deters worldwide publication, as books cannot be sold through online booksellers such as Amazon an no excerpts can be put online. And if it doesn’t deter worldwide publication, it at least contributes a great deal to the balkanization of the Internet. And many situations do not even make it to court. Powerful and rich businessmen in Eastern Europe, reportedly, are very successful in taking down content and preventing publication with the mere threat of prosecution in the UK.

Finally, it must be said that (some) governments have seemed to realize the problem. In the US, for example, the SPEECH act was adopted in 2010, emphasizing the threats of libel tourism, prohibiting enforcement/recognition of foreign decisions (under certain conditions) and explicitly allowing US defendants to counter-sue.  At the other side of the pond, the UK is currently revising its defamation bill (specifically targeting libel tourism) and in France a court recently dismissed an important case, discouraging libel tourism.

Are website-owners liable for comments of their visitors? Position in France

Today, the French Conseil Constitutionel (supreme jurisdiction on constitutional issues) answered a question asked by the Cour de Cassation. The question concerned the constitutionality of article 93-3 of the Audiovisual communications law (July 29, 1982). The article would, allegedly, put in place a presumption of guilt contrary to articles 8 and 9 of the ECHR (by allowing to impute an infringement to an individual that is unaware of the content of the messages posted on his blog/forum, whereas in reality the infringement is committed by someone else). It was also suggested that the article is contrary to article 6 of the ECHR because it puts in place a different but unjustified treatment for different actors.

The article basically puts in place a, what the French call, ‘waterfall’ (cascade) liability regime. The article states that the directeur (or co-directeur) will be prosecuted as the main author, if the offending message was subject of ‘fixation’ before its communication to the public. If the (co)directeur cannot be found/is exempted, it’s the author. And if not the author, it’s the producteur.

When the infringement is the result of a message that was posted by an internaute (internet user, netizen, …), the (co-)directeur cannot be held criminally liable as the author, IF: (1) the service provider made the message available to the public on a spot dedicated to personal contributions (and identified as such); (2) it can be proved that the service provider did not have any knowledge of the message before it was put online; (3) he removes the message promptly when he obtains knowledge.

The decision explains that the directeur benefits of a specific liability regime (and is exempted). Additionally, ‘in the current regulatory and technological environment, the Internet allows the author of a message to remain anonymous’. Taking these two points into account, the Conseil Constitutionel decided that the article cannot be interpreted as to hold the creator of a (public) website (producteur), making available messages of users (e.g.: discussion forum), criminally liable for content that he was not aware of before it was put online. Such an interpretation would put in place a de facto ‘irrefutable presumption’ of criminal liability, which would in turn be unconstitutional.

The article itself though is ruled to be constitutional as such (the Conseil merely rejected the above-mentioned interpretation).

The full ruling, press announcement, public hearings, etc are available here.

Parisian Delusions

Beginning of this year, four decisions were issued by the Parisian Court of Appeals. In all of them, Google was held liable for copyright infringement for their Google Video service, despite the clear intermediary exemptions in the Electronic Commerce Directive (art.14-15).

Notwithstanding the fact that they immediately removed copyright protected material upon notification, Google was still held liable because it did not prevent people from reposting the content. The court explained that the Internet giant did not put in place all technological measures to prevent the files from being uploaded again. Despite the Court’s denial, this leads to a de facto conflict with art.15 ECD, prohibiting monitoring obligations. In bully-mode and with a certain arrogance vis-a-vis European regulation, the Court even went further. Google was held liable for copyright infringement for the results in their video-search service, even if the content was hosted by third parties!

This deplorable evolution of European law, also to be found in Sweden and several German cases (one of them even claiming that YouTube is not a UGC Platform but adopts the content it shows ‘as its own’), once more confirms the old continent’s shortsightedness and lack of will to encourage innovation and development in the information society.