PARIS COURT OF APPEAL

14^th chamber - section A, December 12^th, 2007

Google Inc. and Google France vs/ Benetton Group and Bencom

Key words: blog - trademark counterfeiting - hosting - manifestly illicit (yes) - withdrawal (no) – liability (oui) - communication of identification data

Extract:

Translated by Emanuela Catichi, Attorney at law – Paris and Bucarest Bar (Latournerie Wolfrom & Associés, Paris)

“(...) Concerning the knowledge of GOOGLE INC about the illicit character of the litigious data (...)

That, although the hosting provider is not liable for the content of the data which it hosts, it must not leave the matter to the judges for appraisal when it is notified of data whose content is declared illicit, but should assess [by its own] if such content is manifestly illicit and, in such case, should remove such data or render it inaccessible;

That, according to the terms of article 6.I.5 of the LCEN [Law for the trust in the digital economy], the knowledge of the litigious facts is presumed to be acquired by the access providers and the hosting providers when they are notified the following data:

- date of notification,

- identification data of the notifying person,

- identification data of the receiver,

- description of the litigious facts and their precise location,

- reasons for which the content must be withdrawn, including the mention of the legal provisions and the justifications of the facts,

- copy of the correspondence sent to the author or to the editor of information or litigious activities, asking their interruption, withdrawal or modification or the justification of why the author or the editor could not be contacted.

That under the provisions of article 6 1.7 of the LCEN, the access providers and the hosting providers are not subject to a general obligation of monitoring or research of facts;

That it belongs, therefore, to the respondents to seek and communicate to GOOGLE INC the information justifying the manifestly illicit nature of the litigious content;

That it is function of the information communicated to GOOGLE INC that can be assessed the knowledge which [the company] could have of the manifestly illicit nature of the denounced facts;

That, since it is established only the communication to GOOGLE FRANCE of a denunciation without other justification than the copy of the request asking "Angela Brozzi� to cease its activity on the Internet, the respondents cannot allege that the knowledge of the litigious facts by this company was, then, acquired;

That the respondents claim that they communicated their evidences on May 3^rd, 2007, by delivering their writ; that GOOGLE INC does not contradict this allegation when it says that it was not informed of said evidences before the respondents initiated a summary procedure;

That the litigious blog was withdrawn, according to the respondents, on June 8^th, 2007, and, according to the appelants, on June 6^th, 2007;

That it results from all the above that it is by communicating to the appellants, after having issued a writ against them, the evidences proving [i] their rights in the trademarks of BENETTON group, [ii] the fact that no "Angela Brozzi" worked for this group, [iii] the fact that her face appeared on the Internet under another name, [iv] the fact that the pictures reproduced on the litigious blog were those of a catalogue belonging to BENETTON group, [v] the fact that the non-professional editor hiding himself behind the name "Angela Brozzi" requested to young women, by wrongfully claiming a professional reason, pictures showing them in swimsuit or underwear, THAT the respondents provided the justifications which enabled GOOGLE INC to take knowledge of the manifestly illicit nature of the denounced content;

That GOOGLE INC does not deny the fact that the manifestly illicit nature was established and known, since it had these evidences; that, therefore, it should then have acted promptly to withdraw this information or to render it inaccessible, without awaiting the decision of the first judge;

That, having proceeded to the withdrawal of the litigious blog only on June 6^th or 8^th, 2007, the civil liability of the appellant was engaged as from the preceding May 3^rd and until the said withdrawal date;

That, therefore, the first judge pertinently considered that GOOGLE INC had not observed the provisions of the LCEN, relating to the promptness with which a hosting provider must withdraw or prevent the access to manifestly illicit data content, this failure being, however, established only as from May 3^rd, 2007;

Concerning the obligation to communicate data allowing identification

Considering that, according to article 6.III.2 of LCEN, the persons publishing a service on a non-professional basis, may put at public’s disposal, to preserve their anonymity, only the name / the company name and the address of […] the hosting provider, provided that they gave to the latter the personal identification data “provided by the 1�, therefore, speaking of natural persons, their name, first names, residence, telephone number;

That these clear provisions do not require any interpretation concerning a non-professional editor’s identification data which the hosting provider must hold;

That, according to the provisions of article 6.II of the same text, the access providers and the hosting providers [must] [i] hold and preserve data allowing the identification of whoever contributed to the creation of the content of the services which they are providing, and [ii] provide to persons who publish a service of on line communication to the public, the technical means allowing them to satisfy the above mentioned conditions of identification; a decree of Council of State, issued after opinion of the CNIL, would define the data to be held and kept;

That it results from the above that [i] the non-professional editor who created a blog under the name "Angela Brozzi", was held to provide its identity information to GOOGLE INC and that [ii]  this hosting provider should have hold and keep the data allowing editor’s identification, among which should have been mentioned the said identity data;

That, although the LCEN provided that a decree would define all identification data [to be] held by the access providers and the hosting providers, the LCEN mentioned, at least, speaking only of hosting providers, that they [should] receive the name, the first name, the residence and the telephone number of the non-professional editors hosted by them;

That GOOGLE INC undertook before the summary procedures judge […] [the obligation] to communicate, if it were requested to, the information allowing the identification of "whoever contributed to the creation of the litigious contents";

That the "user profile area" provided by GOOGLE INC does not allow a non-professional editor to satisfy its obligation of identification unless when it uses of the mere option […] to give its identity; that [this area] does not allow to this hosting provider to fully satisfy his [own obligations], since it does not impose this identity disclosure by the editor and, therefore, its holding by the hosting provider;

That although the IP address is a personal data, it allows only the identification of a computer;

That this fact was confirmed by Eric SCHMIDT, Chairman and Managing Director of GOOGLE, in an article of the newspaper “Le Monde�, of September 19^th, 2007, stressing that "the IP address, [which is] the number assigned to a computer, does not (allow) to really identify a person, [since it does] not give, although it is a personal data, any indication on the person’s identity or place of residence";

That, therefore, GOOGLE INC could not content itself with providing the respondents an IP address and sending them to the access provider […] to obtain the identity of the litigious blog, while it should have the required identity information, in its quality of hosting provider and to comply with LCEN;

That GOOGLE INC does not prove [i] that the access provider of the litigious blog was determined to comply with the obligation to detain the identity information concerning the considered editor and [ii] that, by providing an IP address, [GOOGLE INC] provided to the respondents the means to identify the non professional editor of the said blog;

That, therefore, the first judge pertinently considered that GOOGLE INC had not observed the LCEN provisions, relating to the conservation of data allowing the identification of the editor of the litigious blog [...]"