To obtain compensation for a loss suffered on a website, it is important to identify the website’s activity, and more specifically its role as a publisher of online public communication content or as a hosting provider.
In the first situation, the website publishes its own content, whereas in the second, it offers third parties the opportunity to publish theirs.
Qualifying as a publisher implies a form of control over editorial content, i.e. control over the information that is published.
When these publishers are professionals, they are also subject to certain obligations, such as mentioning a certain number of elements on their site, such as their company name, etc.
In the information sector, the presumption of liability rests with the publication director, i.e. the publisher, rather than with the journalists or editors, who are considered to be merely accomplices. The publisher may be held liable in tort or in contract, particularly in the event of publication of content that is defamatory, incomplete or manifestly unlawful, etc.
On the other hand, the host is the person who offers others the possibility of storing content for online public communication. Its status is set out in article 6, I, 2 of the Law on confidence in the digital economy of 21 June 2004, which defines it as: ” natural or legal persons who ensure, even free of charge, that signals, writings, images, sounds or messages of any kind supplied by the recipients of these services are stored for public access by online public communication services”.
This raises the question of liability, particularly in the absence of a content publisher.
The hosting provider has an obligation to remove and prevent the dissemination of content. However, it benefits from a special “limited” liability regime . They will only be held liable in the event of :
- actual knowledge of the content, which must be clearly illegal
- lack of diligence in removing the illegal content from the moment it becomes aware of it, i.e. receipt of a notification.
It must therefore demonstrate passivity in its authority and knowledge of such content and prove, in order to be exempt, that it was aware neither of the unlawful nature nor of the content itself.
