Voyageurs du Monde and Terres d’Aventure, two French companies, summoned Google before the French jurisdictions when they discovered (i) that the request “voyageurs du monde” on Google's search engine directed the internet users towards advertising hypertext links to the benefit of competing tour operators and (ii) that the reservation of the keywords “terre d’aventure” or “terdav” was suggested by Google AdWords’ process.
The question was whether Google could claim, as a referencing service provider, the status of hosting service provider in order to benefit from the derogatory regime established by the LCEN law(1).
In its decision, the Court of appeal of Paris points out that Google has no active role in the selection of the keywords used by the advertisers nor in their suggestion as they are automatically generated by algorithms. Furthermore, the commercial message attached to the promotional link was only written by the advertiser. In the light of these elements, the Court of appeal of Paris concludes, by overruling the judgment rendered by the Court of first instance of Paris (in the meaning of "Tribunal de grande instance") in 2009, that Google "only intervenes, with its AdWords offer, as an intermediary provider whose business is purely technical, automatic and passive, which implies its lack of knowledge or control on the data it stores” (CA Paris, 9 April 2014, n°13/05025). It can thus benefit from the hosting service provider status.
This solution follows the European Court of Justice's well established case-law (cases C-236/08, C-237/08 and C-238/08) as well as the French Supreme Court's decisions (in the meaning of "Cour de cassation" - Cass. com., July 13, 2010, n°05-14331 and Cass. com., January 29, 2013, n°11-21011) which hold that “only an active involvement of the provider during the intellectual phase of selection of keywords and writing of advertisements is likely to characterize an active role”.
Furthermore, Google having deleted, in a few days, the trade links notified by the claimants, the Court of appeal of Paris considers that Google fulfilled its web host obligation, so that no liability can be held against him.
Similarly, regarding the links which reappeared thereafter, the Court considers that Google's liability cannot be engaged as no notification of illegal content was properly sent to him.
Finally, the Court of appeal of Paris overrules the judgment rendered by the Court of First Instance where it held Google liable on the grounds of parasitism and misleading advertising.
Indeed, it considers that there is no risk of confusion because the disputed hypertext links are clearly identified as “trade links” and allow the “reasonably well informed and observant” internet user to distinguish them from those of Voyageurs du Monde and Terres d’Aventure.
Moreover, the mere appearance of the litigious links in response to a research which uses generic terms does not carry out a comparison between goods and services offered by the advertisers and those offered by the two French companies. Therefore, the AdWords service doesn’t generate misleading comparative advertising.
1 As a reminder, article 6.I.2 of the LCEN provides that: “Natural and legal persons who ensure, even for free, for the availability to the public by online public communication services, the storage of signals, written data, images, sounds or messages of any nature provided by addressees of these services, cannot be held civilly liable on the grounds of the activities or information stored at the request of an addressee of these services if they were not aware of the illegal nature thereof or if, upon being aware thereof, they promptly withdrew such information or prohibited access thereto".
Antoine Gendreau, Partner and Lauren Bonnet