👉On June 1, 2022, the French Cour de Cassation overturned a decision of the Paris Court of Appeal which had qualified the company Ticketbis (which operates the eponymous online platform) as a host. It considered that it had an active role and concluded that it acted as a content publisher.
⚠️The consequences are important: if it is a publisher, the platform may incur general legal liability and thus be held directly liable for any illicit content published on the site, unlike a host who is subject to a so-called attenuated liability regime according to which he is only responsible for such content if he has not promptly removed it after it has been notified to him. ⚠️
In this case, the French Football Federation accused the platform of offering for sale on its website tickets for matches organized by the latter in violation of the provisions of Article 313-6-2 of the French Penal Code (article relating to fraudulent appropriations) and of its general terms and conditions of purchase and use. In order to judge whether Ticketbis was liable, the judges first had to determine its legal status.
While the Court of Appeal of Paris had considered that Ticketbis could qualify as a host ⛔️, the French Cour de Cassation denied such qualification on the grounds that:
📍Ticketbis offered on its website an intermediation service for the sale of tickets;
📍the site enabled possible purchasers of tickets to make choices between the various programmed sports competitions;
📍a sports commentary on upcoming matches illustrated said competitions;
📍 Ticketbis secured the transaction.
Thus, the French Cour de Cassation concluded that “this company, by its assistance, consisting in particular in optimizing the presentation of the offers to the sale in question and in promoting them, which was based on its knowledge or its control of the stored data, had an active role”. 💣
This decision is not isolated, as other platforms such as eBay or Airbnb have already suffered the same fate, and the subject remains hotly debated; the CJEU is in particular due to issue a highly anticipated decision in the very next few months regarding the status of Amazon, in a case against Louboutin, which accuses it of selling counterfeits on its platform. ⚖️🧨
💡 Online platforms must carefully analyse their role (active or not) to make sure that they comply with the relevant status (host and/or publisher).
Commercial Chamber, Cour de cassation, June 1st, 2022, no. 20-21.744
By Elsa Rodrigues, Litigation partner.