Is privacy a basis for Internet Service Provider (ISP) liability, even when the offending material is posted without the ISP's knowledge? A French court has held that it can be.
Many European jurisdictions have stronger privacy protection laws than those found in the U.S. In particular, French law provides that "each person is entitled to respect for their private life." The law is applied to protect an individual's image, health, parental and marital status, relations with children, romantic attachments, and political and religious beliefs. It is irrelevant whether the claimant is a public figure or even if the matter previously has been disclosed in another context. The claimant maintains the right to control the timing, circumstances and context of any disclosure.
French courts, therefore, are a likely forum for invasion of privacy claims based on Internet speech. Under French law, a claimant can bring such a case even if neither party is a French citizen. If the claimant can not enforce the judgment in the United States, any assets located in France would be at risk.
In a recent ruling, a French court held an ISP responsible for content distributed on a customer-operated website. The court found that Valentin Lacambre, operator of the service, violated model Estelle Lefebure's privacy and damaged her professional reputation by allowing a customer to post nude images of Lefebure on its web site. In addition, the court ordered the ISP to put a mechanism in place that would ensure that the photographs could not be transmitted from any site obtaining Internet access from the ISP, and fined the ISP for every day the ISP did not have the monitoring mechanism in place. Lefebure v. Lacambre Tribunal de Grande Instance de Paris, Ref. 551B1/98, No. 1/JP 6/9/98.
Judge Jean Jacques Gomez ruled "it seems necessary to state that the ISP is obliged to guarantee the morality of those that he provides services to, that these parties respect the rules governing the World Wide Web and that they respect national laws and regulations as well as third party rights." Judge Gomez further found that the service provider has the capacity to access the sites and "to take measures to end any nuisances that the site may be causing to third parties." The Judge further held that ISPs must assure that its customers are aware of privacy, intellectual property and other third party rights.
In any situation involving a claim against Internet content, whether based on privacy or other grounds, such as trademark or copyright infringement, it is essential that the ISP be in a position to remove the infringing or otherwise illegal materials quickly. An important action in preparing for such complaints is to have a clear, definitive "acceptable use" policy in place. The policy should be part of any subscriber or service agreement, so that, as a condition of the subscriber's service, the subscriber consents to use the Internet access for lawful purposes only and gives advance consent to the removal of likely objectionable content.
The subscriber agreement also can be used to notify subscribers about improper uses of proprietary or third party information. Such action has a practical effect of notifying subscribers beforehand who might otherwise post such materials. In addition, such a provision in the agreement fulfills in part the ISP's responsibilities under decisions such as that rendered by the French court.
Finally, while Internet liability may once have been the province of ISP's and bulletin board operators, as companies move toward "interactive" web sites that allow outside parties to interact or post content, such liability becomes the concern of any company operating such a site. Interactive areas of such sites should also contain similar notices and conditions of access.