Liability of content-sharing platforms

The liability of content-sharing platforms refers to the regime specific to online content-sharing service providers, whose main purpose is to store and give the public access to a large amount of works uploaded by their users, which they organise and promote for profit-making purposes. Deriving from Article 17 of Directive (EU) 2019/790, it is transposed in Articles L. 137-1 et seq. of the French Intellectual Property Code for copyright and in Articles L. 219-1 et seq. for related rights.

The principle of liability

By giving access to works uploaded by its users, the provider itself performs an act of communication to the public, for which it must obtain the authorisation of the rightholders. That authorisation covers the acts of users who are not acting for commercial purposes. The provider cannot rely on the limited liability regime for hosting providers in respect of those acts. Excluded from the definition are, in particular, not-for-profit online encyclopaedias, online marketplaces and cloud services for individual use.

Exemption from liability

In the absence of authorisation, the provider is liable for the acts of communication to the public, unless it demonstrates that it has met three sets of cumulative conditions:

• having made best efforts to obtain an authorisation from the rightholders,
• having made best efforts, in accordance with high industry standards of professional diligence, to ensure the unavailability of works for which the rightholders have provided it with the relevant and necessary information,
• having acted expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the works or to remove them, and having made best efforts to prevent their future upload.

These conditions are assessed in the light of the principle of proportionality, taking into account the size of the service and the cost of suitable means. Services less than three years old with an annual turnover below ten million euros benefit from lighter obligations.

User safeguards and oversight

The regime creates no general monitoring obligation and must not result in preventing the availability of content that does not infringe copyright, in particular content covered by quotation, criticism, review, caricature, parody or pastiche. The provider must put in place an effective and expeditious complaint-handling mechanism, subject to human review. The Court of Justice of the European Union holds that prior filtering is admissible only if it adequately distinguishes lawful from unlawful content.

Key points

Content-sharing platforms are liable for the works uploaded by their users, unless they prove their best efforts to obtain licences, to block identified content and to remove notified content expeditiously. Users’ exceptions and a human review must be preserved. For a rightholder, providing the platforms with the information identifying its works is the condition for the effectiveness of the scheme.

---

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