French Supreme Court denies eBay hosting protection

In three decisions (non official copy in French only) issued on May 3, 2012, the French Supreme Court (Cour de Cassation) has upheld threedecisions of the Paris Court of Appeal of September 2010 (non official copy in French only), holding that eBay was not entitled to protection under the e-commerce Directive, as it could not be deemed a mere “hosting provider” .

To reach these decisions, the French Supreme Court specifically relied on the “active role” standard recently laid down by the ECJ in its GoogleFrance (ECJ Joined cases C-236/08 andC-238/08, see Newsletter6/2011 p.7-8) and eBay decisions (ECJ case C-324/09, see Newsletter4-5/2011 p.7-8). It held that in offering its online auction services, eBay had not limited itself to offering a mere hosting service but had, “regardless of the role played by its users, played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers”.

Among the factual circumstances relied upon by the Supreme Court to conclude that eBay had played “an active role” in the selling process of infringing products, the Supreme Court stressed the point already made by the Paris Court of Appeal, notably the role played by eBay in the assistance to the sellers and the promotion and fostering of the sales (follow-up, promotion, pro-active boosting sale policy).

The Supreme Court had however partially overruled the decision of the Appellate Court on a jurisdictional issue, holding that if French courts were indeed competent to rule on the liability of eBay for its activity on eBay.fr and eBay.uk, since these websites were “complementary” and “both targeted […] the French public”, the jurisdiction of French court over the U.S. company “eBay, Inc” and its website “ebay.com” was not sufficiently established by the claimants.

The case was thus remanded before the Court of Appeal of Paris, in a different form, to rule on the question of the possible liability of eBay France, eBay UK and eBay Inc., for the (possibly infringing) products sold by their users. [Béatrice Martinet Farano]

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