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French sites fined for linking to privacy-invading Kylie content

Minogue/Martinez stories provoke lawsuit

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Three French websites have been found guilty of invading an actor's privacy for publishing links to articles containing the offending material. The Paris Tribunal has fined the operators of all three sites.

Oliver Martinez, who is famous for his relationship with pop singer Kylie Minogue, sued two blogs and one news site over links to other people's stories about him and his relationship with Minogue.

The case was principally against Fuzz.fr, a website which displays links to news stories on other sites ranked by popularity. One of those links was to a story about Martinez and Minogue and formed the basis of the case, which claimed that the article violated his right to privacy.

The Paris Tribunal said that Fuzz.fr operator Eric Dupin's publishing of the link made him responsible for the information linked to.

"By sending the reader to the website celebrite-stars.blogspot.com the defender had effectively made an editorial decision," the court ruling said. The ruling was in French and all quotations are from a rough translation done by OUT-LAW.COM.

"The link in effect is a deliberate decision on the part of the defending organisation, contributing to the spread of illicit information, thus making him responsible as an editor of such information," it said.

Dupin was fined €1,000 and ordered to pay a further €1,500 in costs. The court said that the use of the hyperlink was "akin to Eric Duphin writing such a blog himself. The responsibility of the defendant results from him being at the root of the diffusion of such information and therefore being held to have breached article 9 of the French Civil Code".

Article 9 of the French Civil Code provides that everyone has the right to respect for his or her private life.

The judge fined two bloggers who also posted links to the story, the writers behind CroixRousse.net and Vivre-en-normandie.com. They were each fined €500 for linking to the item.

"It's a black day for French participatory websites, because it opens the door to all kinds of [court] procedures," Dupin told news agency AFP.

He said he would appeal the ruling to a higher court, but that he had had to stop publishing his site because he could not vet every link published.

The theoretical possibility has been there of being sued over the content of a story to which a publisher has only provided a link, but a lawsuit on that basis is extremely rare. The issue remains largely untested in the UK.

But according to Struan Robertson, a technology lawyer with Pinsent Masons and editor of OUT-LAW.COM, a link to controversial subject matter could land a site operator in trouble.

"Linking to copyright-infringing material could be a criminal offence under laws that deal with 'distributing' infringing copies while linking to material that incites terrorism could be dealt with under anti-terrorism legislation. Linking to defamatory or otherwise unlawful material could also get you sued."

Robertson pointed to a court ruling of 1894, the case of Hird v. Wood in which the defendant was sitting beside a placard containing defamatory remarks and drew the attention of passers by to it.

"There was no direct evidence of who provided the placard but the defendant's action of pointing at it led to a finding of liability," he said.

That ruling might still be used to stop a website in the UK that links to defamatory content, Robertson suggested.

"This sort of battle is usually resolved long before legal precedents need to be cited because most website operators will quickly remove a link in the face of a complaint rather than suffer the hassle and expense of fighting to keep it active," he said.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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