Hosting user-generated content: what liability regime applies?
Publisher vs host, LCEN Act, takedown notices: the liability regime for platforms hosting user-generated content under French law.
For developers of applications and websites, allowing users to publish their own content drives engagement and growth. This model raises questions of liability.
The French LCEN Act distinguishes two regimes. A publisher is the party that creates or selects content: it is liable for everything on the platform. A host provides a storage service without choosing content (Article 6-1-2 LCEN). The host benefits from a reduced liability regime.
The host is not civilly or criminally liable for hosted content, unless it fails to remove promptly content that is manifestly unlawful once notified. This regime applies only if the host has no active role giving it knowledge of or control over the stored data (CJEU, Google AdWords, 23 March 2010). Selecting content or featuring it otherwise than through automated ranking is sufficient to constitute an active role. The host may, however, organise the service to facilitate access (Cass., Dailymotion, 17 February 2011).
The host is liable only if it was aware of the content, knew it was manifestly unlawful, and failed to remove it promptly. It is not subject to a general monitoring obligation.
To benefit from the hosting regime, a reporting procedure must be in place. The notification must include the date, the identity of the notifier, a description and precise location of the content at issue, the grounds for removal, and a copy of correspondence sent to the content author. Liability can only be triggered if all of this information is included.
The platform’s terms of use should prohibit the publication of unlawful content and provide for removal without notice at the request of rights holders. The legal notices must include contact details. For drafting terms of use, see the e-commerce services page.
The hosting regime is protective but conditional on compliance with certain obligations. If you host user-generated content, book a call to secure your position.
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