The facts are these: In January 2002, the editors and Lucky Comics Dargaud Lombard find that two comics which they are respectively editors are reproduced in their entirety and without their permission on the website www .chez.com / bdz . This site is hosted by the media company Tiscali, Telecom Italia today, via the website www.chez.tiscali.fr .
The two publishing companies have filed an application with identification of the President to obtain the host all the information in its possession which may allow the identification of the author of the disputed site. The information provided does not identify the author of the site, companies and Lucky Comics Dargaud Lombard have sued the company Telecom Italia.
company Telecom Italia has been convicted at trial. His responsibility was confirmed by the Court of Appeal of Paris in a ruling June 7, 2006, she has appealed.
The company argued that Telecom Italia as host, she had no legal obligation to check the adequacy of the information provided by users of a storage facility and that liability could be incurred only if it had not acted promptly to prevent access to illegal content.
The appeal has been rejected by the First Civil Chamber of the Court of Cassation.
The Court of Cassation, in fact, considered that, since the company Telecom Italia " offered to the user to create their personal pages from his site and offered to advertisers to set up directly on these pages, the advertising fee which it manages (...) services provided exceeded the simple technical functions of storage, covered by Article 43-8 [...], so [she] could not invoke the benefit of this text .
On reading this decision, it appears that the failure by the company Telecom Italia to offer advertisers the introduction of paid advertising banners on personal pages gives him as publisher and not host.
As a publisher, the company Telecom Italia is not eligible for exemption from liability for hosting then provided for in Article 43-8 of the Act of December 30, 1986 amended by the Act of 1 August 2000 and now replaced by Article 6.I.2 of the Law of 21 June 2004 on Confidence in the Digital Economy (LCEN).
The solution is surprisingly insofar as the law defines the activity of hosts as a storage activity " against payment or free " (words taken from the LCEN). In principle, the criterion of commercial exploitation should not be allowed to exclude the benefit of the exemption from liability for hosting. Yet what did the Court of Cassation.
While the high court does will not rule on the basis of the LCEN, it would seem that hosting companies that generate revenue on the services they offer are not to away from be qualified publisher.
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