The Court of Cassation restricts the concept of host

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An intermediation site for the sale of football match tickets must be qualified as a publisher because of the assistance provided, consisting in particular of optimizing the presentation of tickets for sale and promoting these sales. This assumes its knowledge or control of the data stored and gives it an active role which excludes considering it as a host. The beginning of a fundamental movement?

Facts

The French Football Federation (FFF) is an association holding a public service delegation to organize the practice of French football.

Ticketbis SL (Ticketbis), a company governed by Spanish law, operates the “www.ticketsbisfr.com” site through which it connects resellers and potential buyers of tickets giving access to sporting or cultural events, in particular tickets for football matches of the French team taking place in France.

The FFF accuses the company Ticketbis of contravening the provisions of article 313-6-2 of the penal code and article 4.4 of the general conditions for the acquisition and use of tickets for matches organized by the FFF in France titled “Use Restrictions”.

On two occasions, it sent formal notice to withdraw from its website the sale of match tickets that it organised, in particular the France/Bulgaria match, then the France/Sweden and France/Côte d’Azur matches. ‘Ivory.

By letter dated October 27, 2016, Ticketbis informed the FFF that it had removed the events concerned from its site.

However, the FFF notes that Ticketbis continues to offer tickets on its site for the France/Netherlands and France/Luxembourg matches on August 31 and September 3, 2017, and for the France/Belarus match on October 10, 2017.

The FFF therefore assigns Ticketbis liability, as site editor, so that it is awarded damages and various measures are ordered.

Host ?

The debates revolve around the quality of Ticketbis: publisher of the site and responsible in this capacity, or host benefiting from the reduced liability regime?

The Court of Appeal decides: it rejects the action for damages against the company Ticketbis based on article 1240 of the civil code on the grounds that the defendant company is a host. It considers that the user of the site alone provides the information concerning the ticket that he wishes to put on sale, sets the price and that Ticketbis is content to store the offers for sale on its server, the user also having responsibility for the transmission of the ticket to the purchaser. It deduces from this that the role played by Ticketbis is neutral, in that its behavior is purely technical, automatic and passive, implying the absence of knowledge or control of the data it stores.

The FFF appeals in cassation and invokes in particular the fact that to benefit from the limited liability of technical hosting providers, the economic agent must occupy a neutral position and, therefore, not play an active role likely to entrust it with a knowledge or control of the stored data. However, the tickets offered for sale were classified by perfectly identified sporting event, accompanied by the date, time, venue of the match and news messages and messages encouraging the sale and purchase of related tickets. to the French team and a service guaranteeing the transactions.

Optimization and sales promotion: tipping criteria?

The Court of Cassation recalls Article 6, I, 2° of Law No. 2004-575 of June 21, 2004, under which natural or legal persons who provide, even free of charge, for making available to the public by communication services to the public online, the storage of signals, writings, images, sounds or messages of any kind provided by the recipients of these services cannot see their civil liability incurred as a result of the activities or information stored at the request of a recipient of these services if they had no actual knowledge of their unlawful nature or of the facts and circumstances giving rise to this character or if, from the moment they became aware of it, they acted promptly to remove or disable access to such data.

It also highlights the Google France judgment of the CJEU, in which the latter had ruled that “Article 14 of Directive 2000/31/EC of the European Parliament and of the Council, of 8 June 2000, relating to certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce”), must be interpreted as meaning that the rule set out applies to the provider of a referencing service on the Internet when this service provider has not played an active role such as to entrust it with knowledge or control of the data stored. If it has not played such a role, the said service provider cannot be held responsible for the data it has stored at the request of an advertiser unless, having become aware of the illicit nature of this data or activities of this advertiser, it has not promptly removed or made inaccessible the said data”.

Following this judgment, the CJEU had also ruled that the “operator plays such an (active) role when he provides assistance which consists in particular in optimizing the presentation of the offers for sale in question or in promoting them. ci” (CJEU, 12 July 2011, L’Oréal ea/eBay international ea C324/09).

Applying these judgments to the present case, the Court of Cassation holds that:

  • the site offered potential ticket purchasers the opportunity to choose between the various scheduled sports competitions,
  • a sports commentary on the matches to come illustrated these, such as “last straight line before the next World Cup” or “France favorite against Luxembourg”,
  • these comments end with the sentence “all the qualifying matches of the 2018 World Cup can be followed live thanks to Ticketbis which allows you not only to buy but to sell your football match tickets”,
  • the Ticketbis company secured the transaction.

For the Court of Cassation, it follows from these findings that “this company, through its assistance, consisting in particular in optimizing the presentation of the offers for sale in question and in promoting them, which was based on its knowledge or control of the data stored, had an active role”.

Concretely said: Ticketbis cannot be qualified as a host and the Court of Appeal did not draw the legal consequences of its findings.

Double standards with search engines?

The Court of Cassation opted for a restrictive view.

It gave the L’Oréal judgment referred to above as wide a scope as possible, sometimes at the cost of a rather light argument: it seems to us, for example, that the Court erred in putting on an equal footing a statement which aims specifically a specific match of the French team (“France favorite against Luxembourg”), and that which aims to support Ticketbis’ activities in general without referring to a specific team or match (“all qualifying matches of the 2018 World Cup can be followed live thanks to Ticketbis which allows you not only to buy but to sell your football match tickets”).

If it suffices to promote the activity of the host as such (without promoting a specific transaction) to leave the role of host and enter that of the publisher, are we not emptying what does the hosting provider’s plan mean?

This severity with regard to intermediation sites leaves one perplexed in relation to the leniency enjoyed by other players, including search engines.

The Google France ruling was handed down 12 years ago… and we act as if nothing had changed since then.

However, things have evolved considerably, in particular following the complexification of algorithms and the introduction of artificial intelligence, which give search engines almost complete freedom as to the construction of results (with, as we know, a increasingly clear tendency to orient the results in a specific direction according to decisions which are exclusively the responsibility of the operator of the engine). Moreover, the search function is more and more often ancillary: it plays the role of loss leader towards other products or services which bring in the operator more or fit into his overall strategy.

Is it certain that by applying to search engines an approach as severe as that applied to intermediation sites, they would still be qualified as hosts? In Google France, the CJEU had left the door open, stressing that Article 14 of the Directive on electronic commerce applies to the provider of a referencing service on the Internet “when this provider has not played an active role such as to entrust him with knowledge or control of the stored data”.

Given the evolution of search engines, is it certain that the CJEU would provide, today, an answer identical to that of 2010? The question is valid.

More informations

By reading the cassation decision, available in the appendix.

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