Monday, 12 January 2009

Dailymotion: the “stay down” obligation confirmed

President of the High Court of First Instance of Paris, 19 November 2008, Jean-Yves Lafesse / Dailymotion,

A judgement of the High Court of First Instance of Paris dated 15 April 2008 had ordered the site Dailymotion to cease all broadcast of the content of filmed sketches of the comedian and author Jean-Yves Lafesse contained in 10 DVDs and 5 CDs.

After the ruling, however, it was established that 4 excerpts of the sketches were still available on the Dailymotion site. Jean-Yves Lafesse therefore brought the case before the President of the High Court of Paris, acting as a summary jurisdiction, to have the removal of the litigious works ordered.

The President said that Dailymotion, which is a hosting provider under the French Act of 21 June 2004 on Confidence in the Digital Environment, had knowledge of the illegal nature of the works that were put online on its site after the judgement rendered on 15 April 2008. The President ruled that the authors and producers thus did not have to send Dailymotion a prior formal notice to inform it of the illegal nature of the content put online, since the hosting provider knew all the said sketches and therefore had the obligation to do all it could to ensure that the works in question remain inaccessible on its site.

In a decision dated 19 October 2007, the High Court of First Instance of Paris had already ruled 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 after notification, as they have a “stay down” obligation to meet (see our comment of the ruling