MARKETPLACE LIABILITY – French Court strengths the liability of online marketplaces by applying the status of editor rather than host

In a judgement dated 13 April 2023, no. 21-20.252, the Commercial Chamber of the French Supreme Court ruled that the online marketplace TEEZILY was an editor and overturned the judgement of the Court of appeal, which had ruled that it was an hosting provider.

The company TEEZILY commercialises products, clothes and other printed materials through its website www.teezily.com. It enabled designers to put their creations online for reproduction on the said products, to choose the availability duration, set the product price and a target number of buyers, and promote their product.  

The company SPRD.NET initiated a proceeding against the company TEEZILY for trademark infringement, violation of its database and unfair competition, noting that the company TEEZILY sold clothing and accessories identical to those it marketed and that it reproduced the “SPREADSHIRT” trademarks owned by SPRD.NET.

The company TEEZILY invoked the exemption of liability as a hosting company within the meaning of the French Law “LCEN”, which was upheld by the Paris High Court, rejecting all SPRD.NET’s claims.  

The company SPRD.NET appealed against this decision, but its claims were once again rejected by the Paris Court of Appeal.

In particular, the Court of Appeal had found that the following facts did not demonstrate an active role on the part of TEEZILY, excluding consequently the status of editor:

• guiding the designer in setting the price of his product;
• offering the designer technical support to “create your design in one click“;
• publishing articles on general tips for each country to help designers in their advertising campaign;
• providing a logistical service for the manufacture and delivery of the products, with the corollary that the designer has authorised TEEZILY to reproduce his work, and that the buyer has the related guarantees.

The Court also rejected SPRD.NET’s argument that TEEZILY was offering sales optimisation assistance to creators, on the grounds that there was no evidence of this. The screenshots provided in the submissions were of poor quality, did not mention TEEZILY’s name and were undated.

It concluded that TEEZILY’s role and conduct were neutral and purely technical and did not indicate knowledge or control of the data stored by it.

SPRD.NET therefore appealed to the French Supreme Court.

In its ruling of 13 April 2023, French Supreme Court overturned the decision of the Court of Appeal. It held that the company TEEZILY did not act as a hosting provider because it provided creators with a logistical service for manufacturing and delivering products, thereby playing an active role that gave it knowledge or control over the data relating to these offers.

Lastly, with regard to the illegibility of the screenshots produced in the submissions before the Court of appeal, the Supreme Court noted that the bailiff’s report also reproduced the screenshots, which were of better quality and should therefore have been taken into account by the judges.