BOUYGUES EUROPE'S CONTRIBUTION TO THE PUBLIC CONSULTATION
ON EUROPE'S DIGITAL POLICY LAUNCHED BY "CONTEXTE" AND
"RENAISSANCE NUMERIQUE"
July 2014
Bouygues Europe has contributed to the public consultation on digital policy launched jointly
by the specialist publication on European policy "Contexte" and the think tank
"Renaissance Numérique". This consultation aims to identify various players' expectations in terms
of European digital policy. The issue of copyright protection is therefore central to this consultation.
In its contribution, Bouygues Europe has chosen to address the concept of "active" service provider.
This is because content service providers are playing an increasingly active role and their editorial
responsibility must therefore be factored into European legislation.
Copyright and editorial responsibility
Copyright protection is an essential component of editorial responsibility. Service providers that
merely store content are exempt, whereas those that produce content must assume full
responsibility for it. This distinction is fully justified. Nonetheless, there is a third category of
players which is not covered by legislation.
"Passive" service providers are exempt from any responsibility
The e-commerce directive states that service providers are, in principle, not responsible for the
content they store. The service provider's activity is "of a mere technical, automatic and passive
nature".
From "passive" service provider to "active" service provider
The legal status for service providers was created in 2000, before the arrival of video sharing
platforms. These platforms have gradually expanded their activities from their original content
storage role. They now rank videos according to user profile, publish adverts, etc.
Far from being purely passive players, they now have an increasingly active role.
Creation of the "active" service provider status
In 2011, in the "Mediaset vs. Yahoo!" and "Mediaset vs. Italia online" cases, a Milan court ruled
that Italia online and Yahoo! were not just "mere conduits" as defined in the e-commerce
directive. The court showed that these providers posted adverts linked to these videos, that they
edited, adapted and modified the uploaded videos, that they proposed videos linked to the
previously-viewed ones, and that they even published videos on-line themselves.
The court ruled that they were "active" service providers and that, as such, they should assume
editorial responsibility for the content.
A change to the regulatory framework?
In order to adapt legislation to technological change, the category of "active" service provider
ought to be introduced into European regulations.
"Active" service providers should assume certain editorial responsibilities such as: permanently
deleting the accounts of users who regularly upload illegal videos, deleting illegal content and
making sure it's not put back on-line later on, and taking a proactive stance to identify and delete
illegal content, etc.
The creation of such a status may also lead to more wide-ranging thinking about the need to
guarantee a genuine level competitive playing field between all audiovisual sector players
(protection of children, taxation, contribution to creation, etc.)