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RSS feed and Liability

Legal note Number 3

dimanche 18 mai 2008.

 

Abstract

Today, Internet users, including bloggers, are increasingly using "RSS feeds" to receive information from their favourite websites or to directly rebroadcast this information on their own web pages or blogs. An RSS feed is a service that a website offers and to which you can subscribe in order to receive the latest updates of this site. But French Courts have recently held liable people who were integrating someone else’s feed on their own page or blog due to the content of the feed, even though the feed was automatically updated, so that the people who were displaying on their websites didn’t have any idea of its content. In fact, it seems that French judges are seeking to make it easier to regard someone as a "publisher", ie liable for the information that it makes available on its pages and blogs, whilst up to now the very same people were often regarded as simply acting as "hosting providers", ie not liable except in a very limited set of circumstances.

Author(s) : Laurent Ferrali and Charles Simon

1. What is an RSS feed ?

An RSS (for Really Simple Syndication) feed is a small program that allows you to "syndicate" websites, ie to subscribe to these sites to be regularly updated on the latest texts, sounds or videos that they offer.

From the moment you subscribe to the RSS feed of a website, you automatically receive the latest news about this site in the form of a brief. A brief, is a compendium of information : the date on which the latest text, sound or video was released ; its title ; a quick summary and an hyperlink to access it. If you want to access the text or the video, you just have to click on the link to get to it directly. Easy !

Therefore using RSS feeds turns things around : instead of having to constantly check that no new items have been released on your favorite blog, it is now your favorite blog which lets you know when there is a novelty.

2. Why everyone is talking about RSS feed now ?

One of the things you can do with RSS feeds is to integrate them into your own website or blog. For example the "feed" will appear in a corner of your blog and all your visitors will have the opportunity to get acquainted with the latest news from the sites to which you subscribed. If they are interested, they’ll simply have to click the hyperlink in a brief to be redirect to the site which offers it.

The problem is that once you subscribed to an RSS feed, your blog automatically receives all the latest news that the RSS feed displays and some of them can be troublesome. For instance, the latest text of a site to which you subscribed can be very injurious to someone or very indiscreet about someone’s love life.

Recently, a French movie star did not appreciate an article in a magazine which addressed his love life. But instead of filing a complaint against the magazine, the said star sued a blogger who had subscribed to the RSS feed of this magazine. And the French judge sentenced the blogger just as if he was responsible for the article of the magazine ! In France, many people use RSS feeds on their blogs so that everyone now wonders who will be next to get sued due to a brief that someone did not appreciate.

3. Why should someone who reuses a feed on his or her website be held liable for its content ?

Some French judges do not consider the selection of a feed as an harmless act. If you choose a feed, you are responsible of its content as you were free to choose another one or none at all. They do not care that you don’t know that such and such a brief is displayed at any given time in a feed you subscribed to, and that it appears on your site. These judges rule that people who choose to display a feed on their sites are "publisher" of the feed, as much as the people who really originated it. The blogger who selected a feed can therefore be held liable for its content and it doesn’t make a difference that the blogger has no control over the brief and the articles to which it refers.

On the other hand, some people, including bloggers, consider that someone who displays someone else’s feed on its site is in a similar situation to that of someone who offers to host a webpage. It provides space on its site for someone to host something without a prior verification of what it contains. One could therefore say that the blogger acts as the hosting provider to the RSS feed. Words are important here because it is harder for a judge to hold liable an hosting provider than a publisher.

4. What is the difference between a publisher and a host ?

French law defines what a host is but doesn’t address what a publisher is.

The host is someone who offers to give some place to others on the Internet where they will have the ability to put up their pictures, texts, music and videos. For example, the French access provider Free also provides personal pages and bulletin boards. Services such as MySpace are acting as hosts to their users too. The advantage of being a hosting provider is that under French law you cannot be held liable for what people do with the space that you offer them, except under certain very strict conditions

No one knows exactly who the publisher is on the other hand. Someone who puts something on his own website is certainly its publisher, but according to the latest French rulings someone who is acting as a hosting provider but also organizes the layout of the websites it hosts and earns money through advertisement placed on these websites could be their publisher too. The problem with being the publisher of a website is that, as a publisher, you can be held liable for its content.

5. When am I a publisher and when am I a hosting provider ?

It’s hard to say really because, in some of the latest rulings, judges considered that someone can be both a hosting provider and a publisher. If you solely act as a hosting provider, ie. you simply provide a place for people to create their blogs, you are simply a host. But if you offer to help people with the layout of their blogs by providing them with designs or if you put up advertisement on the blogs that you host you may be both a hosting provider and a publisher ! If you have a bulletin board or a blog with an RSS feed, with recent court decisions we cannot be sure anymore. Maybe you are hosting the messages on the bulletin board and the briefs of the RSS feeds or maybe you are their publisher. Therefore you have to be extra cautious !

6. Do the judges want to kill off RSS feeds ?

No, but French judges clearly want to narrow down the situations in which someone can claim to be a hosting provider to avoid prosecutions. Therefore RSS feeds are not really at issue here. What is at issue is the wider legal category of hosting providers which some seem as applied to too many different people.

7. Why should it matters to me ?

7.1. You run a blog where you automatically aggregate RSS feeds from other sites, today you may be liable for briefs that you don’t even know to exist. Especially if you have put adverstisement on your site, judges could rule that you are the publisher of the RSS feed and hold you liable for information carried by the RSS feed you subscribed to. It doesn’t matter that you don’t even now of the existence of the brief at issue !

7.2. You operate a Bulletin Board or a blog, tomorrow judges might consider that you are the publisher and not only the host of the messages that people send on your board or your blog. Judges might want to further reduce the types of people that they recognize as hosting providers or decide that you are both a host and a publisher for a content, and therefore widen the possibly to hold you liable for the messages of your visitors, even if you do not validate messages beforehand, therefore ignore their very existence.

8. What is the position of the ISOC on RSS feeds ?

Within the Legal Commission, we understand the concern of some judges : if nobody is responsible, everybody can do anything. But at the same time it makes things really complicated now. When are you a hosting provider ? When are you a publisher ? When are you both a hosting provider and a publisher, and first of all how do you know that you are a publisher ? In short, it would be really helpful to clarify things because, today, one might get the impression that we has moved from a situation where nobody was liable because everyone was a host to a situation where everyone is liable because everyone is a publisher or both a host and a publisher.

But judges are not the only ones at fault. Individuals who have a problem with a brief have options to consider in order to resolve the situation. Suing someone on the basis that everyone is a publisher might not be the best solution. A famous French swimmer recently obtained the withdrawal of indecent pictures of herself which were available on the Internet with great ease and very quickly. She did not go before Court to achieve that, her lawyers simply sent out clear, but strongly worded letters, asking people who were hosting these pictures to take them down. It is less spectacular than going before court but it worked just as well, if not better, without raising tons of questions about the liability of everyone involved.

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Mentions légales : Hébergement : OVH Directeur de la publication : Odile Ambry