I host content uploaded by my users: what is my responsibility?
Content posted by users: what is the responsibility of the host?
For creators of applications and websites, the establishment of tools to build a community is unifying and allows greater public engagement.
One of the keys to this commitment is to allow users to post their own content.
This type of tool will retain them and benefit from the virality effect typical of social networks. The advantage of such a model is obvious from an economic point of view, as it makes it possible to generate significant traffic at a lower cost and therefore to increase the visibility of the platform.
When the choice is made to provide such a tool, the host must however understand the extent of its liability and the applicable regime. Indeed, the publication of content by users may infringe the rights of third parties and implement the responsibility of the host.
The law LCEN has created two different liability regimes for the publication of content on the internet:
More precisely, is considered to be a host, the entity that provides” for making available to the public through online public communication services, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services ” (Article 6-1-2 of the LCEN law).
On the other hand, the status of the publisher is not defined in the law and must be interpreted in contrast to the definition of the host.
Understanding the difference between these two statuses is fundamental as the host will benefit from a reduced liability regime, while the content publisher will be responsible for any content published on the platform (violation of intellectual property rights, civil or criminal liability).
The host is irresponsible civilly and criminally for the hosted content, unless it does not suspend the distribution of illegal content when it has been reported to it.
However, the regime is only applicable if the host does not have any”active role likely to entrust knowledge or control of stored data” (Google Adwords decision — CJEU 23 March 2010).
The selection of content, the choice of content posted online and the determination or verification of content is sufficient to characterize an active role.
Conversely, the host can, without playing an active role, “rationalize the organization of the service” in order to “facilitate access” (Dailymotion decision - Court of Cassation, 17 Feb. 2011).
If the host highlights certain content other than through automatic classification (number of views, topics based on information provided by content creators), it may lose the benefit of this regime of reduced liability and in fact be considered a publisher.
If he respects these conditions, the host can only be held responsible for the hosted content if he:
To benefit from the hosting provider regime, it will therefore be necessary to set up a reporting procedure, so that rights holders can inform the hosting provider if content for which they have rights appears on the platform.
The report constitutes information to the host as to the existence of the content, and its clearly illicit nature.
However, the host still has the opportunity to assess whether the content is clearly illegal and whether it grants the request to remove the content.
The notification should include the following information :
“-the date of the notification;
-if the notifying party is a natural person: his name, first names, profession, profession, residence, nationality, date and place of birth; if the applicant is a legal person: its form, its name, its registered office and the body that legally represents it;
-the name and address of the recipient or, if it is a legal person, its name and its registered office;
-the description of the facts in dispute and their precise location;
-the reasons why the content should be removed, including the mention of legal provisions and factual justifications;
-the copy of the correspondence sent to the author or publisher of the disputed information or activities requesting their interruption, withdrawal or modification, or the justification that the author or publisher could not be contacted.”
The hosting provider can only be held liable if all of this information is included in the notification.
Withdrawal must be made promptly, but the deadline is not set by law.
In addition, it should be noted that the content host is not subject to a general monitoring obligation of its platform, unlike the content publisher. It does not have to have a proactive role in finding contentious content, and may be limited to responding to notifications.
It is useful to specify the following in terms of use of the platform, in order to secure the legal relationship with users:
In addition, the legal notices of the host's site must allow you to contact him (by email, post or telephone).
These few precautions are sufficient to allow the establishment of a content hosting system, while benefiting from the reduced liability regime.
What classes, and products/services should be included in a trademark for a mobile application?
The transfer clause in SaaS agremeent is a trap: a customer should not be able to prohibit an important operation for the SaaS company. How should it be drafted?
Let's build together to grow your business
I have been supporting software and SaaS companies for more than 10 years, to structure their business, protect their intellectual property and improve their contracts.
