On April 9, 2014, the Paris Court of Appeals[1] ruled on Google’s status regarding its AdWords services. It found that Google is a passive host provider for these specific services, which awards it limited liability destined for passive hosts provided by the E-commerce Directive.[2]
Google’s AdWords service is frequently the cause of legal disputes. This decision follows, inter alia, a decision of the Court of Justice of the European Union (CJEU), which ruled that hosting keywords corresponding to trademarks does not amount to a “use in the course of trade” that the right owner can prevent.[3]
A decision was rendered in lower court in January 2009, which found Google liable for unfair competition and misleading advertising. On appeal, the Court excluded the misleading character of the ads, stating that the display allowed any average internet user to perceive the difference between the advertising and the natural results.
The Court then focused on Google’s role in the keywords selection for its AdWords service. Google’s intervention was qualified by the judges as “merely technical, automatic and passive […], consequently lacking control and knowledge of the hosted information”. The Court also pointed out that the hosting provider had no monitoring obligation regarding illegal content.
Indeed, European law distinguishes active service providers from passive hosts to whom it offers partial immunity. This immunity exempts the hosting providers from liability for third-party content hosted on its platform. However, if there is actual knowledge of information, facts or circumstances of an illegal nature and no action was taken expeditiously to remove or disable access to the illegal content, the host may be held liable.
The Paris Court of Appeals’ decision confirms the trend set by previous French case law as well as the Spanish Court in the Telecinco v Youtube case[4] whereby automatic services do not contravene to the neutral nature of the services provided. Therefore, the Courts recognize that there is no reason to exclude such passive service providers from liability immunity according to the E-commerce Directive.
As part of its monitoring activities, Dreyfus offers watch services covering AdWords campaigns as well as domain names and social networks.
[1] CA Paris, April 9, 2014, Google France, Inc. et Ireland / Voyageurs du monde, Terres d’aventures
[2] Directive 2000/31/CE on E-commerce
[3] CJEU, March 23, 2010, Google France v Louis Vuitton Malletier, joined cases C-236/08 to C-238/08
[4] CA Madrid, January 14, 2014, Telecinco v Youtube, N° 11/2014