Electronic Commerce: intermediates of liability rules, bids rise. U surfer had not sold a bag Hermes on the auction site eBay Online turned out to be counterfeit. The company Hermes then not only the salesperson assigned on the basis of the infringement, but the auction site. The will of Hermes to try to stem the online sale of counterfeit goods is not in doubt.
The Tribunal de Grande Instance in Troyes in a decision of June 4, 2008 holding that eBay met, certainly the technical function of host who makes under the law on confidence in the digital economy of 21 June 2004 (LCEN) to exclude the liability of the intermediary technique. However judges hold that the activities of the platform beyond the simple role. They thus retained the classification of " editor of online communication services subject to brokerage " civil liability for eBay since it provides tools for development of the property, arranges frameworks within which objects are presented for sale in return for payment, and enacts rules of operation. However, the Tribunal de Grande Instance in Troyes precludes the classification of "content providers", which would have involved strict liability as defined by the LCEN the grounds that the counterfeit items were posted by the user, not eBay itself, and that the formatting imposed by the site did not obey an editorial choice but was necessary to ad's visibility.
So on the basis of the qualification " publisher of online communication services subject to brokerage " that trial judges have retained joint and several liability as to eBay Now the courts will not condemn the infringer without reaching the platform for sales, considered a mere technical intermediary that the law of June 21, 2004 exemption from the obligation to monitor the content (except in specific cases such as incitement to racial hatred, child pornography, etc.. ). This is the principle that if through technical not withdraw illegal content brought to its attention that it accepts liability. Only the content editor, personally responsible for the dissemination endorses the strict liability defined by the LCEN .
This unprecedented trial, should it be upheld on appeal, is a real warning shot when the model of technical platforms, online sales available to Internet users. The latter, whose role beyond that of simple technical intermediary should then exercise control over broadcast content, which seems technically very cumbersome to implement but also very expensive.
One may question the decision was made if Hermes had opted for criminal rather than civil action to punish acts of infringement. The internet would certainly been convicted. But what would have happened to eBay? A criminal conviction would have found eBay to my sense of a criminal conviction for vicarious and could not therefore be legitimately imposed. This means that for intermediate technical risk now exceeds the civilian penal risk.
© Xavier Cerf
