PARIS COURT ORDERS TWITTER to identify the authors of racist messages
By an interim order of January 24, 2013, the Tribunal de grande instance (TGI) of Paris ordered Twitter to disclose the data to identify the authors of racist or anti-Semitic messages, and to set up an alert system to bring the illegal messages to its attention.
Twitter is a U.S. company which operates a platform for social networking and microblogging on the Internet, a service that allows its members to publish short messages of a maximum of 140 characters (tweets), to follow the publications of other users and to participate in discussions threads.
The publication of tweets inciting racial hatred or anti-Semitism via hashtags such as #unbonjuif (#agoodJew) and #unjuifmort (#adeadJew) caused consternation in France. Several associations (UEJF, J’accuse AIPJ, MRAP, SOS Racisme, LICRA) gave Twitter formal notice to remove this clearly illegal content. As Twitter did not react, the associations filed a summons for urgent proceedings.
To argue that Twitter was liable for the messages disseminated and stored on its platform and as a web host provider, the associations relied on Article 6-I and II of the LCEN (Loi pour la confiance dans l’économie numérique du 21 juin 2004 or Law on the confidence in the digital economy of June 21, 2004).
The aim was to obtain not only the transmission of the elements enabling to identify the authors of the illegal messages, but also the establishment of a mechanism for reporting illegal posts to Twitter, to make Twitter remove these, in accordance with the requirements of the LCEN.
To defend itself, Twitter France argued that it could not be qualified as a web host provider within the meaning of French law, and therefore possibly be held liable, as the content is stored in the U.S. and not in France.
The court did not follow the arguments advanced by the parties. It preferred to rely on Twitter’s terms of service which provide that “international users agree to comply with all local laws regarding the online behavior and the acceptable content”.
According to Twitter’s terms of service, the authors of the racist or anti-Semitic messages are subject to French law by the mere acceptance of the Twitter rules. In addition, as French law (Article 113-2 of the French criminal code) provides that French criminal law applies to infringements committed on the French territory, that is to say if one of the elements of these infringements took place in France (the sending, the reception, the publication of the tweets…), the illegal posts are necessarily subject to French law.
Therefore, the court granted the associations’ request concerning the identification of the authors of the illegal messages invoking the existence of a “legitimate reason” within the meaning of Article 145 of the French code for civil proceedings (“if there is a legitimate reason to maintain or establish, before any trial, evidence from which the resolution of a dispute might depend, then legally permitted investigation measures may be ordered at the request of any interested party, upon request or in an interim order ”).
It is not surprising that the Tribunal de grande instance of Paris did not take the opportunity in this interim order to rule on the legal classification of the Twitter platform.
Can Twitter be qualified as a web host provider and therefore be subject to the provisions of Article 6-I and II of the LCEN?
It will be left to the trial judge to rule on this issue.
However, it should be noted that the court, referring to Article 6-I, 8° of the LCEN, has ordered Twitter to set up a device enabling any user to report illegal tweets.
This order suggests that the court already considers that the Twitter platform should be subject to the rules applicable to web host providers. Indeed, it is under the condition of having such a device, that Twitter may, where appropriate, rely on Article 6-I, 2° of the LCEN, which provides that web host providers cannot be held liable “if they were not aware of the illegal nature or of the facts and circumstances showing this nature or if, after having acquired this information, they acted promptly to remove the data or make the access to it impossible”.
As the court ordered Twitter to set up an alarm system, Twitter now has to assume its responsibilities; Twitter can no longer pretend that it is not aware of the illegal content on its social network.
Contact: Cyrille Amar
Publication date : February 2013