Paris Court of Appeal orders video-sharing website Dailymotion to pay substantial damages for failure to promptly remove infringing content
In June and July 2007, the French TV channels TF1 and LCI noticed that some videos they produced were made available on Dailymotion in breach of their rights. They consequently sued Dailymotion for counterfeiting, unfair competition and parasitism. In total, around 5,500 notices were sent to Dailymotion.
In a decision handed down on 13 September 2012, the Paris Civil Court ruled that Dailymotion benefitted from the limited liability regime of providers of hosting services under the E-Commerce Directive but failed to comply with its obligation to remove promptly the litigious videos after having received proper notice, as required by Article 6 of French law n° 2004-575 of 21 June 2004 on confidence in the digital economy, implementing the E-Commerce Directive. As a result, Dailymotion was notably held liable to pay 258,000 Euros in compensation to the claimants.
The Paris Court of Appeal, in a decision dated 2 December 2014, confirmed that Dailymotion could be considered as a provider of hosting services. In itself, this solution is not new as several case law decisions have decided in the past that Dailymotion could benefit from the limited liability regime granted to providers of hosting services. One interesting point however is that the Paris Court of Appeal expressly stated that Dailymotion can claim the distinct status of both a provider of hosting services and editor, as long as the provided services are different. It therefore seems that the Paris Court of Appeal endorsed a distributive approach according to which the applicable liability regime would depend on which activity is at stake. Such an approach has already been implemented in the past, notably in the L'Oréal v eBay decision of the Paris Civil Court dated 13 May 2009. In the present case, the Court held that the activities at stake related to Dailymotion's role as hosting provider.
The Paris Court of Appeal also agreed with the Court at First Instance that Dailymotion did not comply with its obligation to remove promptly the unlawful content upon proper notification. For instance, some videos were still available on Dailymotion 7 to 13 days after the notice. Other videos were still on line around 100 days after the notice.
However, the appellate Court substantially increased the amount of the compensation awarded to the claimants. The Court awarded a total amount of 1,208,000 Euros to the companies of the TF1 group (which had demanded 6,845,000 Euros). The Court nonetheless dismissed the claimants' request for a preventive filtering measure to be implemented as Dailymotion is a provider of hosting services and as such, cannot be under a general monitoring obligation.
Dailymotion has indicated that it is not impossible it will refer this decision to the French Supreme Court. Such a referral would be of interest as it would give the opportunity to the French Supreme Court to clarify the relationship between the status of editor and provider of hosting services and whether one operator, like Dailymotion, can indeed fall under both categories, depending on which activity is at stake.
 French Supreme Court, 17 February 2011, n° 09-67896