RSS (or Really Simple Syndication) is a family of Web feed formats used to publish frequently updated content. This format can be particularly useful for blog entries, news headlines or podcasts, because the feed is permanently updated and the latest content is automatically displayed.
An RSS file or document usually contains the title of the news, a short description or a summary and a hyperlink to an associated website which hosts the article.
The visitors interested in that content can click on the hyperlink. They will then be redirected and have access to the full text on the main website which hosts the news. Thus, with the RSS feeds, a website is able to broadcast its content easily and can attract new Internet users.
To read the RSS content, the user needs software called “RSS reader” or “feed reader”. The user subscribes to a feed by entering the feed's link into the reader, or by clicking an RSS icon in a browser that initiates the subscription process (The definition of RSS can be found at: http://en.wikipedia.org/wiki/RSS). The RSS feeds are part of what it currently called Web 2.0. They are widespread and appreciated by webmasters.
However, the automatic nature of the RSS format is not always a good thing for the user, nor is the use of the RSS feeds risk-free. Indeed, a hyperlink can lead to an article which violates the law. News often deals with the private life of celebrities, and Internet makes that kind of infringement even more visible. Therefore, can a webmaster be liable for an RSS feed which violates the law, even though the content is automatically displayed and comes from another website?
The question has been submitted to the French Courts very recently. Before examining the rulings, we can quickly sum up the applicable legislation.
The main issue concerns the status of the user who has subscribed to the RSS feeds. Is he a hosting provider or a publisher?
If he is a hosting provider, he will then be liable on the grounds of the article 6-I-2 of the French Act on Confidence in the Digital Environment, adopted on 21 June 2004. This article provides that a hosting provider may not be held liable for the information stored at the request of a recipient of the service if he is unaware of illegal content, and if having knowledge of such content, he has immediately acted to remove it or to disable access to the information.
On the contrary, if he is a publisher, he will then be liable on the grounds of the article 6-III-1 of the same Act which refers either to tort law (that is to say Article 1382 of the French Civil Code) or to the Freedom of the Press Act adopted on 29 July 1881, if the violation of the law is a press offence.
In other words, if the user of the RSS feeds is a hosting provider, he is only liable under certain circumstances. If he is a publisher, he will be liable for his acts if they cause damage to another party.
Three cases concerning RSS feeds have been tried so far.
First, a summary judgement issued by the High Court of First Instance of Nanterre, on 28 February 2008 ( http://www.juriscom.net/documents/tginanterre20080228.pdf; S. Rouja, «Responsabilité pour les flux RSS, la prudence est de mise !», http://www.juriscom.net/actu/visu.php?ID=1032). In this case, a hyperlink on the website “lespipoles.com” referred to an article published on the website “gala.fr” about a love story between a French movie director and an American actress. The French director sued the owner of the domain name, Mr D.
According to the plaintiff, Mr D. had intentionally decided to subscribe to the RSS feed and to create a link referring to a specific website: “gala.fr”. Therefore, he had the status of publisher.
The respondent argued that the website only gathers news headlines collected from other websites. Those headlines are displayed automatically and he does not check them before they appear on the screen. That is to say that he has no control over the content. He is only a hosting provider, according to Article 6-I-2 of the French Act on Confidence in the Digital Environment. Consequently, he argued that the plaintiff should rather have written to him and asked for the removal of the links than bringing an action before Court, as provided in the Act.
In this case, the Court ruled that Mr D. had the status of publisher because he had subscribed to a RSS feed. Furthermore, his website deals with a very specific theme (the private life of famous people) and the links were organized in a specific manner.
The second decision was issued by the same Court, on 7 March 2008 ( http://www.juriscom.net/documents/tginanterre20080307.pdf). The situation was almost the same as the previous one. The action was brought before the Court by the same plaintiff, but this time the respondent was the website “wikio.fr”. The judges declared that they were not competent for this litigation because the respondent, owner of the domain name, was not appointed by the legal mentions on the website as the hosting provider, the publisher or the webmaster. Therefore the plaintiff decided to sue Wikio directly (M. Rees, “Agrégateurs de flux RSS : Wikio.fr une nouvelle fois attaqué”, http://www.pcinpact.com/actu/news/43143-wikio-olivier-dahan-flux-RSS.htm ).
Finally, a very recent summary judgment was issued by the President of the High Court of First Instance of Paris, on 26 March 2008 (most commonly known as the “Fuzz” case, http://www.juriscom.net/documents/tginanterre20080307.pdf). In this case, again, a website was hosting a link concerning the private life of a French actor. The President adopted the same reasoning as in the first case. He ruled that the respondent acted as a publisher by deliberately selecting the websites and organizing the links in a specific way. He condemned him for infringement of private life on the grounds of Article 9 of the French Civil Code. The webmaster has decided to lodge an appeal.
For the time being, any user of RSS feeds is liable for the content of the news which appears on his website, even if the whole text is hosted on another website.
These decisions have not been well received by the webmasters, though they have one positive aspect: they illustrate the uncertainty about the notion of publishing in French law ( http://www.pcinpact.com/actu/news/42436-LCEN-digg-like.htm). Some authors consider that such decisions question the acronym RSS (really simple syndication) and others even think that they threaten the French Web 2.0 (M. Rees, «Le web 2.0 français menacé? », http://www.pcinpact.com/actu/news/42403-fuzz-acteur-presse-citron-LCEN.htm).
FRANCOIS KAWACIW
www.bradspitz.com
IPIT NEWS FROM FRANCE, by YS Avocats law firm, www.ys-avocats.com
