Liability of hosting providers

The liability of hosting providers refers to the limited liability regime enjoyed by service providers that store, at the request of their users, content of which they are not the authors. Derived from Directive 2000/31/EC on electronic commerce and transposed in Article 6 of the French Law of 21 June 2004 on confidence in the digital economy, this regime is now laid down in Article 6 of Regulation (EU) 2022/2065 on digital services, French law having been adapted in 2024 to comply with it. A hosting provider is not liable for the unlawful content it stores as long as it has no actual knowledge of it and acts expeditiously to remove it as soon as it becomes aware of it.

Qualifying as a hosting provider

The exemption requires a merely technical, automatic and passive role, implying a lack of knowledge of and control over the content stored. The Court of Justice holds that a provider loses this benefit where it plays an active role of such a kind as to give it knowledge of or control over the data, for example by optimising the presentation of offers or promoting them. Marketplaces and social networks have been held to be hosting providers where their functions remained technical, but content-sharing platforms for copyright-protected works have since 2019 been subject to a specific regime that in principle makes them liable for acts of communication to the public. A provider under a technical hosting agreement remains within the general regime.

Conditions of the exemption

A hosting provider retains the exemption if it has no actual knowledge of the illegal activity or content and, as regards claims for damages, is not aware of facts or circumstances from which the illegality is apparent, or if, upon obtaining such knowledge, it acts expeditiously to remove the content or disable access to it. In practice, knowledge results from a sufficiently precise and substantiated notice, the Regulation specifying that any notice enabling a diligent provider to identify the illegality without a detailed legal examination gives rise to actual knowledge. No general monitoring obligation may be imposed on it, but targeted injunctions to terminate or prevent infringements remain possible.

Additional obligations

Beyond the exemption, a hosting provider is subject to due diligence obligations graduated according to its size, including setting up a notice mechanism, informing the authors of removed content, handling complaints and, for marketplaces, verifying the identity of professional sellers. As an intermediary, it may be subject to blocking and delisting injunctions, even where it incurs no liability.

Key points

A hosting provider is liable for stored content only from the time it has actual knowledge of its illegality, acquired in practice through a precise notice, and only if it has failed to remove the content expeditiously. It loses this regime where it plays an active role. Draft notices with enough precision to establish knowledge, keep proof that they were sent and monitor removal times.

---

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.

Intellectual property attorney · Tell us about your situation