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RSS re-publishers are liable for unlawful content

We report on the French court ruling that could put many a publisher off using RSS feeds17 Apr 2008


 A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.


Hello and welcome to Out Law Radio, the weekly podcast that keeps you up to date on all the twists and turns in the world of technology law.

Every week we bring you the latest news and in depth features that help you to make sense of the ever changing laws that govern technology today.

My name is Matthew Magee, and this week we investigate some of the dangers of web 2.0 with the revelation that for the first time a court has found a website responsible for the content of publishers through RSS.

But first, the news:

Privacy watchdog wants business to reveal data losses; and Music industry demands iPod tax

The privacy watchdog for EU institutions has called for a planned requirement for telecoms companies to publish details of information security breaches to be extended to banks, businesses and medical bodies.

The European Commission has proposed a data breach notification law which would force telecoms companies to tell customers when personal information had been lost. The European Data Protection Supervisor has said that if the proposal is designed to help prevent identity theft it must be extended to include banks, businesses and others.

Controversy surrounds plans for data breach notification laws because they are opposed not only by many businesses but also by some privacy and data protection experts.

The EDPS said that in the US the existence of a security breach notification has been a factor that drives up investment in security.

The UK music industry has rejected the Government's proposal to legalise the transfer of music from CDs to MP3 players without a levy. It has asked for a tax on devices like Apple's iPods which it said should compensate artists for the transfer.

The Government has proposed legalising the format shifting of music to computers and MP3 players as long as the CD was paid for, the transfer happens just once and is for personal use only. Currently the practice, which is near ubiquitous amongst MP3 player owners, infringes copyright law.

The Music Business Group, an umbrella group of trade bodies representing music managers, songwriters, publishers and performers has proposed a levy on the devices that might play transferred music, principally MP3 players. That levy, or licence, would be set not by the Government but by industry in negotiations with device makers.

That was this week's OUT-LAW news.


The modern internet is now mostly made up of other people's stuff. Whether it be blog comments, cross posts, message boards or mash ups, web publishing is these days as much a question of assembly and re jigging as it is of creation.

One of the most popular ways to bring other people's content on to your site is RSS, or Really Simple Syndication. Out Law has discovered that a landmark ruling in France in March found that a site operator was responsible for any unlawful content which comes through that RSS feed.

The collaborative internet has just become more dangerous.
RSS is a means of sharing content – usually headlines and a brief summary – between sites or from one site to an individual computer. When new stories are published on one site they appear automatically on any others that use that site's RSS feed.
Three French websites, though, have just been found liable for material that appeared on their sites automatically via RSS. They argued that they had no editorial role in actually publishing those specific stories, but the court found them responsible.

The ruling, which could change the nature of RSS in France, is thought to be the first time that any court in any country has held someone responsible for someone else's RSS feed.

The case involved Olivier Dahan, Director of the double Oscar winning Edith Piaf biopic La vie en Rose. Dahan sued three sites - Planete Soft, Aadsoft and Lespipoles – for invasion of his privacy in relation to stories about him and actress Sharon Stone.
Emmanuel Asmar was his lawyer.

Asmar:   That case that was the - you know what an RSS is - it's a link. It's a very specific link but this link provides of course the link plus some short resumé of - short summary sorry - of some content. We won. The judgment said. We won first on the author, on the original author of the information. Second, it was on the link. They were sentenced because they published the link.

The court rejected the site owners' arguments that they were not editorially involved in the story. From a rough translation by OUT-LAW , its ruling said:

"The defender has, in signing up to the order and organising them according to their themes, acted as an editor and must therefore assume responsibility for the information which is displayed on his own site.

In this particular case the RSS reader displayed information not only made up of a simple link but both the title and the snippet of the information appeared. "Sharon Stone and Olivier Dahan, the star has a romantic embrace with the director". This was sufficient to constitute an attack on his private life."

The implications of the ruling could be enormous in France. If your website subscribes to someone else's news feed you're unlikely to be able to vet every story that appears from the feed. This judgment may put French publishers off using RSS feeds altogether. Publishers outside France will simply hope that their own courts don't follow it.

Asmar is the lawyer behind another recent crucial judgment in which bloggers and a web publisher were found liable for invasion of privacy because they published a link to material on someone else's site.

Kylie Minogue's ex boyfriend Olivier Martinez sued two bloggers and one publisher of reader submitted links successfully.

Asmar:   On behalf of Olivier Martinez we sued on the basis of violation of his private life privacy. Different types of websites that were publishing the news regarding his private life which was at the time, was he or not coming back with Kylie Minogue. And he asked me to sue them to protect his private life. We sued everybody and actually we won against everybody. And the new thing about these rulings is - these judgments - they said that they were not responsible for the contents since they were not editor, they were only services providers. And the judge said: no, once you decide to publish information which by nature is an attempt or a violation of the private life of anybody, you're responsible for that.

The rulings could have been more severe. The publishers were ordered to pay between €500 and €800 plus €1000 in costs each because the judge noted that not many people had viewed the material.

But the principle has been established.

Media law expert Kim Walker of Pinsent Masons, the law firm behind Out Law, said that these issues are largely untested in the UK courts.

Walker:   For there to be defamation under UK law, defamatory material has to be published and you can only be liable as a publisher if you are instrumental in making that material known to the public. And I think it would be argued presumably that by providing a link you are effectively letting the world find out about that defamatory material and you have taken a positive act by putting the link up on your site to publish the material. There have obviously been a number of cases on defamation via the internet but they've all been direct, much more apparent publication where defamatory material has been posted or hosted. I'm not aware of any cases in the UK where it's been disseminated by a link.

Walker said, though, that judges in the UK might be wary of setting too strict a precedent when it comes to responsibility for linked to material.

Walker:   I suppose it would have a potential chilling effect on linking and I should also say that I think it's unlikely that the use of a disclaimer would actually necessarily get you out of liability. The internet is based on linking and I would have thought the courts would try hard not to produce a result that meant that linking became less and less prevalent. In reality I think linking would obviously still continue because that's what the internet is all about.

The risk in the UK is less to do with privacy and more to do with responsibility for linked to material that might be defamatory.
In fact there could be a century old precedent that's already established exactly that liability.

Though there was no internet in the nineteenth century there was, from 1870, the Defamation Act. In 1894 the Court of Appeal made a ruling which has been cited since in defamation cases, and which may well influence any future case.

In Hird versus Wood the court heard that a man who sat beside a roadside placard containing defamatory material was liable for that defamation simply because he was drawing the attention of passers by to it.

Walker said that it would be a fair analogy to use for hyperlinking.

Walker:   I think it's a very good analogy. The English common law is based on precedents and that is a precedent, clearly a precedent. So it's the sort of case that would be brought up and argued.

Asmar said that the ruling is already having an effect in France, and that other celebrities are filing cases based on it. It will, he says, change the way that publishing works there.

Asmar:   I think it's going to be a precedent. And now we see a lot of people suing, websites before the French courts.

Magee:   Since this ruling?

Asmar:   Yes. Well they’re certainly going to think twice and they're going to think whether they can afford being liable for that and maybe they going to be able to pay any sentence. They should, maybe be sentenced or they're going to say well no, we're not going to publish it. So in terms of liability it's - they're liable for what they do.

It's impossible to say how the UK courts will deal with a libel linking case, but it could well be that the future of the links based internet in the UK will be strongly influenced by these ancient and modern rulings involving Kylie Minogue, Sharon Stone and a Victorian roadside placard pointer.


That's all we have time for this week, thanks for listening.
Why not get in touch with Out-Law Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com.

Make sure you tune in next week; for now, goodbye.
Out Law Radio was produced and presented by Matthew Magee for international law firm Pinsent Masons.

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