Notice and takedown

Notice and takedown refers to the mechanism by which a person informs a hosting provider of the presence of illegal content in order to obtain its removal or the disabling of access to it. Provided for in Article 6 of the French Law of 21 June 2004 on confidence in the digital economy, it is now harmonised by Article 16 of Regulation (EU) 2022/2065 on digital services, which requires every hosting provider to put in place notice mechanisms that are easy to access and user-friendly, by electronic means. In intellectual property, it is the front-line tool against offers of infringing products and unauthorised uploads of works.

Content of the notice

The notice must be sufficiently precise and adequately substantiated to enable the provider to establish the illegality without a detailed legal examination. It contains an explanation of the reasons why the content is illegal, a clear indication of its location, in particular its exact URL, the name and email address of the notifier, save for certain offences, and a statement by which the notifier confirms their good faith belief that the information is accurate and complete. In intellectual property matters, it is prudent to attach proof of the right relied upon, such as the trade mark registration certificate or evidence establishing copyright ownership, and to describe the alleged infringement. A compliant notice gives rise to actual knowledge of the content and triggers the obligation of expeditious removal on which the liability of the hosting provider depends.

Handling by the provider

The provider acknowledges receipt of the notice, processes it in a timely, diligent, non-arbitrary and objective manner, and informs the notifier of its reasoned decision, stating the available means of redress. The author of the removed content receives a statement of reasons and has access to an internal complaint-handling system, then to out-of-court or judicial redress. Notices from trusted flaggers, a status awarded by the national coordinator to entities with recognised expertise, are processed with priority. A provider that fails to remove expeditiously manifestly illegal content that has been duly notified loses the exemption and is exposed to a liability action.

Abuse and limits

A notice knowingly inaccurate, submitted in order to obtain the removal of lawful content, is an offence punishable under French law by one year’s imprisonment and a fine of 15,000 euros, and the Regulation requires platforms to suspend the processing of notices from persons who frequently submit unfounded ones. The mechanism confers no right of information as to the identity of the author of the content, which must be obtained through the courts. Lastly, if removed content reappears, a new notice is in principle required, unless a court has issued a preventive injunction.

Key points

A precise and substantiated notice, stating the exact location of the content and supported by proof of the right, triggers the hosting provider’s obligation of expeditious removal. It must be accurate, failing which criminal penalties apply. Standardise notices, keep dated proof of them, monitor response times and consider trusted flagger status for right holders facing repeated infringements.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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