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Deutsch: Französisches Verfassungsgericht schränkt Haftung von Bloggern ein

The French Constitutional Court decided on 16 September 2011 that the website administrators (such as editors of blogs or online forums) should not automatically be held criminally responsible for online comments posted on their sites. The action was brought to court by a distribution company against a blog created by one of its franchisees where the mother company was criticised by the commentators of that blog.

The court's arguments were that the online editor had no knowledge beforehand of the content of the comments posted on his site. Also the commentator may remain anonymous and difficult to trace back. "The possibility to identify the authors of messages through the communication data stored by the technical operators is too uncertain to be a guarantee" said the Court. As the site cannot trace back the comment's author and therefore cannot pass on the responsibility, it is therefore unacceptable to penalise the site editor for messages he was not aware of before publication.

The court also explained that the law on mass-media, that included a presumption of responsibility for the directors of a publication, would not apply directly in this new field.

Indeed, previous modifications to the law on audio-visual communications, included a paragraph that says: "the director or co-editor of a publication cannot be hold criminally responsible as main actor if it can be established that he had no knowledge of the message before its online posting or if, since the moment he has become aware of it, he acted promptly to withdraw the message". The law does not say anything about an online service creator whose responsibility could be engaged in case the message author cannot be identified.

This interpretation of the Constitutional Court goes on the same principles applied in February 2011 by the Cassation Court that recognized the hosting status of several Web 2.0 services stating they were not liable for the content posted online on their platform, if they had not been appropriately informed.

"This decisions constitutes a much welcome jurisprudence in France", commented Meryem Marzouki from French EDRi member IRIS, "however the risk remains that a future legislation extends the criminal liability of blog owners for comments and other content generated by third parties on their blog".

Decision French Constitutional Court no 2011-164 (only in French, 16.11.2011)
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais...

Priority Constitutionality Question: a blog creator is not automatically responsible (only in French, 16.09.2011)
http://fr.news-republic.com/Web/ArticleWeb.aspx?regionid=2&article...

The website producers' responsibility limited by the Constitutional Court (only in French, 16.09.2011)
http://www.numerama.com/magazine/19838-la-responsabilite-des-producteu...

EDRi-gram: The French supreme court recognizes hosting status of Web 2.0 services (23.02.2011)
http://www.edri.org/edrigram/number9.4/french-supreme-court-cases-fuzz...