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RIDA 205 | 07-2005

Doctrine

The liability of providers of means of electronic communication towards authors and rightholders

ALBRIEUX, Sandrine

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Début de l'article :

Providers of means of electronic communication – who are neither the authors nor the publishers of the works circulating on the Internet, but rather the persons or entities offering content providers the instruments that enable or make it easier for the material produced by them to be communicated to or located by the public – have never been able to boast of being able to operate in a legal “vacuum”. Their activities do not lie outside the reach of the law when they supply, intentionally or carelessly, the instrument used to commit an offence. Indeed, apart from in the few cases where the providers of means can plead their non-liability or a cause of exemption from liability enshrined in the Law for Confidence in the Digital Economy, they are accountable for their conduct where it is harmful to authors and other rightholders. In particular, they can be held liable as accessories where they contribute knowingly and deliberately to the content provider’s infringement, ope et consilio, provided, however, that the main perpetrator’s infringement is classified as a continuing offence. Their conduct is wrongful under civil law where they have knowledge or cannot be unaware of the infringing nature of the content that they transmit, host, reference or help others to exchange and where they fail to act expeditiously to remove it from the network or disable access to it, thereby allowing the harmful act to continue when they could have prevented it or put a stop to it.