Thursday, 29 November 2007

Google Video held liable for not doing all it could to stop the broadcasting of a film

High Court of First Instance of Paris (3rd Chamber, 2nd Section), 19 October 2007, Zadig Productions and others v Google Inc, Afa

Zadig Productions is the producer of a documentary called ‘Tranquillity Bay’. When Zadig discovered that its film was accessible on the Google Video website, it sent three formal letters of notice on 13 and 14 April 2006, to Google Inc, an American company incorporated in Delaware. In an email dated 15 April 2006, Google Inc informed Zadig that it had removed access to the documentary in question. However, the film was put on line on the site several times by other Internet users. Each time, the broadcasting was notified to Google Inc, who systematically removed the litigious content. However, Zadig considered that Google Inc had not taken all necessary steps to stop the broadcasting of the film, and sued the American company.

The High Court of First Instance of Paris (‘Tribunal de Grande Instance’) held that Google Inc is a hosting provider, and that as such it may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or to disable access to the information.

The Court held that, with regard to the first broadcast, Google Inc complied with these provisions by expeditiously removing the film. However, as regards the following broadcasts, the Court considered that since Google Inc had already been notified of the illegal nature of the content, it had the obligation to do everything necessary in order to prevent a further broadcast. The Court ruled that Google Inc did not prove that it had implemented such means, as the technical means that Google Inc alleged it had developed had manifestly been ineffective in the present case. The defendant could not therefore benefit from the liability limitation provided by Article 6-1-2 of the 2006 Act, and was condemned for copyright infringement: 25.000 euros for the violation of the patrimonial rights, and 5.000 euros for the violation of the moral rights of the author.

The crux of the decision is that once the hosting providers have been notified of illegal content, they are obliged to make sure that it does not reappear on their site. This places them in a difficult situation once they have been notified. Indeed, simply removing the notified content will not be enough to benefit from the liability limitation of Article 6-1-2 (the same limitation is provided for in the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services and in the US Digital Millenium Copyright Act (DMCA)). Where the hosting provider is informed of the existence of an illegal content, it will either have to implement all necessary means to prevent a further user from putting the same content on line, or be able to prove that effective means were implemented in order to prevent such content being placed on the site. Hosting providers (such as Youtube and Dailymotion) will therefore have to develop technical means capable of searching specific content. Right owners might want to use the notification system for all their content in order to make sure the hosting providers will do the best they can to remove the litigious content as soon as it is put on line, and/or be held liable for copyright infringement if they fail to do so.

Further, the decision concerning the infringement of the moral rights of the author in the present judgement is note worthy. The Court ruled that the paternity right (the right of the author to be identified as such) was violated, as the identification elements of the documentary in question on the service Google Video did not contain any identification relating to the co-authors. Moreover, the Court ruled that Google Inc violated the author’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the documentary only allow a very poor quality visualisation (this was already ruled in another decision: High Court of First Instance of Paris, Summary Order, 22 June 2007, see our post: (