French Supreme Court finds ISP Tiscali liable for copyright infringement

In the case of Dargaud vs. Tiscali, Tiscali has been found liable for infringing copyright on a site, hosted by the ISP.

In France, Tiscali provided users with free home pages. In exchange, Tiscali placed advertisements on these sites. One user had uploaded, without consent of the publishers, complete copies of French comics on his personal site, hosted by Tiscali. The content owners (Dargaud and Lucky Comics) took legal action against Tiscali and the court ruled in their favour in 2005. Tiscali appealed, but also the Paris court of appeal considered Tiscali liable in June 2006.

Cassation at the Supreme Court proved to no avail either for Tiscali. On Janaury 14th, France’s Supreme Court verdict followed that of the Paris court of appeal.

The advertisements on the personal sites are a key element in the ruling. By advertising on the personal sites, Tiscali did more than just providing online storage. The Supreme Court confirmed in the ruling that an ISP, in some cases, does not only provide access and hosting services, but also may be considered a publisher (editeur). As such, they cannot use the safe harbour provisions provided by the limited liability regime of article 14 of the e-Commerce Directive. Therefore, by placing and managing ads on these sites, Tiscali is liable for the copyright infringements.