French Supreme Court invalidates ‘take down and stay down’ rule

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In a significant series of three decisions handed down on 12 July 2012, the French Supreme Court ruled that a hosting platform has no obligation to ensure that hosted content that has been previously notified is not later re-posted online by its users. At first sight, the solution adopted by the French Supreme Court seems straightforward, simply applying Article 6-I of Law no. 2004-575 of 21 June 2004 on Confidence in the Digital Economy (LCEN). To rule otherwise would lead to imposing on website operators a general obligation to monitor that is prohibited by the LCEN and by Directive no. 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-commerce Directive) that the LCEN transposed into French law.

Yet, the message of the French Supreme Court becomes all the more relevant and significant when it is placed in context. The re-posting of content that is identical or similar to content having previously been notified and deleted was, indeed, one of the topics giving rise to most of the uncertainties before the decisions of 12 July 2012…

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