French Courts Still Very Confused About The Difference Between A Platform And A User

from the blaming-the-wrong-party dept

For all the complaints that some have about the various safe harbors found in US law to protect service providers from the actions of their users, it's important to note the sort of ridiculous results that occur without such safe harbors. And, for that, you have to look no further than France, which not only doesn't appear to have similar safe harbor laws in place, but whose courts seem to consistently take the position that service providers absolutely are responsible for the actions of their users. We've seen this in the ongoing rulings against Google, which has finally been appealed out of France to the wider European courts. And, then there are the absolutely ridiculous results, such as that time when a French court declared Yahoo and its CEO at the time war criminals, because a user sold some Nazi memorabilia on Yahoo's auction site.

The latest isn't quite as extreme, but is no less ridiculous. A French court has declared that eBay is a counterfeiter because counterfeit goods were sold on eBay. Note that the court didn't blame the actual seller, but the platform provider eBay. The lawyer for the company suing claims that eBay is much more than a platform because it has tools that help sellers sell better. That seems like a huge stretch, but apparently the court bought it. Making eBay liable for any auction held on the site in France is likely to seriously stifle the use of eBay in the country. It now not only will need to review auctions, but somehow do so without any way of actually knowing if a product is legit or counterfeit. How could eBay possibly know this? It can't -- which means it will probably have to do something like ban a tremendous number of auctions. How that can possibly be a good thing for anyone in France is beyond me.

Filed Under: counterfeiting, france, liability. platform, safe harbors, user
Companies: ebay

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  1. identicon
    Terry, 10 Jun 2008 @ 4:03pm

    Finding the right analogy

    Your analogies are flawed in that they all involve objects that are used by people independently of the vendor.

    A better analogy would involve a venue: The owners of a bar should be required to make sure customers aren't selling illegal drugs, fencing stolen goods on the premises or giving alcohol to minors.

    To many people (including the french courts, apparently), services like eBay are more like a venue in which activities take place rather than a service that is purchased and consumed or used elsewhere. So without understanding the orders-of-magnitude difference in scale between an internet venue and a physical venue, I can see how people would think that policing said venue is no different than hiring security to watch the patrons of a bar or the spectators at a sports arena. It's a responsibility that goes along with operating said venue. The analogy breaks down because a physical venue is not the same as a virtual one accessible from anywhere in the world, including places where laws differ. A tough problem to solve.

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