No Safe Harbor Without Action: French Supreme Court speaks
Aurilex • 7 July 2025
A recent French Supreme Court ruling confirms that hosting providers must act promptly on clear infringement notices to maintain their limited liability.
The liability of hosting platforms has undergone significant legislative developments in recent years. In France, it is currently governed by the Law for Confidence in the Digital Economy (LCEN)
of 2004, as amended in 2016, and by the Digital Services Act (DSA)
adopted on February, 14 2024. Most recently, the notion of host liability was at the heart of a dispute between the company Nintendo
and Dstorage
before the French Supreme Court (Cour de la cassation).
DStorage operates a hosting service through its website 1fichier.com, which allows users to freely download online content, including video games from the well-known companies Nintendo, The Pokémon Company, and GameFreak. After discovering the links to download unauthorized copies of some of its games (Super Mario Maker for 3DS, and Pokémon Sun and Pokémon Moon), Nintendo sent two notifications to DStorage, requesting the removal of the content.
The case was brought before the Paris Court of Appeal, which, in a ruling dated April 12, 2023, found that DStorage had failed, in its capacity as host, to comply with its obligation of prompt removal, following the notifications sent by Nintendo.
Dstorage claimed to be merely a storage service provider and appealed to the Court of Cassation. It contested the removal obligation, arguing that the appeal court had imposed a general monitoring duty, contrary to the requirements of Article 6-I-7 of the LCEN. It also challenged the validity of the notification, asserting that they did not identify the authors of the disputed content, failed to distinguish between the authors and the platform’s users, and did not specify the unlawful nature of the content.
In its decision on 26 February 2025, the Court of Cassation upheld the decision of the Paris Court of Appeal. It ruled that the notifications sent by Nintendo satisfied the conditions set out in the LCEN. The notifications included a precise description of the infringing content, which was clearly identified and associated with registered trademarks. The Court further stated that Nintendo was not required to demonstrate any steps taken against the content authors, as they were not identifiable, and that the removal order issued by the Court of Appeal amounted to targeted, temporary monitoring of specific content.
With this decision, the Court of Cassation reaffirmed the reduced liability regime applicable to hosting providers under Article 6-I-2 of the LCEN, which remains conditional on compliance with specific requirements, notably a prompt response following a valid notification. It reiterated that:
- A notification is valid when it includes a detailed description and clear identification of the content;
- Identifying the author of the content is not required if they are not identifiable;
- A host incurs liability if it fails to act promptly after receiving a valid notification.
This decision confirms that hosting providers remain protected under limited liability rules only if they act promptly upon receiving clear and specific infringement notices. As the DSA takes effect, the DStorage case sets a clear precedent: inaction in the face of valid notifications will no longer be tolerated.
Marco Mouchot, Trainee Lawyer
Christine Chai, Managing Partner, Attorney-at-Law
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On April 16, 2025, Christine Chai, partner at Aurilex, was invited to speak at the seminar “ China–Europe Intellectual Property Protection in Practice: A Dual Perspective on Compliance and Risk Mitigation ,” jointly organized by Aurilex and Shanghai Sunhold Law Firm. The event brought together legal professionals from both Europe and China, offering in-depth analysis and practical guidance for companies navigating intellectual property (IP) protection across borders. As the representative speaker on European IP practice, Christine Chai delivered a detailed presentation covering the legal frameworks, registration strategies, and enforcement challenges businesses typically face when entering the European market. Navigating Dual Systems: EU-Wide vs. National IP Protections Christine highlighted the complexity of Europe’s IP system, which combines EU-wide mechanisms (such as EUTM and EPO filings) with country-specific rules. She emphasized the importance for businesses to align their IP strategies with this dual-layered structure. “For example,” she noted, “the actual use requirement under the EU Trademark Regulation means that companies must plan not only for registration but for active, timely use in the market.” Trade Fair Injunctions: A Real and Growing Risk Christine also warned Chinese companies about the increasing use of emergency injunctions during trade fairs in France and other EU countries. “There have been multiple cases where exhibitors faced injunctions on-site, resulting in booth closures and seizure of displayed goods. Without preemptive IP audits, companies expose themselves to serious operational disruptions,” she explained. The UPC: Centralization Comes with Strategy Shifts Addressing recent developments, Christine discussed the impact of the Unified Patent Court (UPC) on enforcement strategy in Europe. While the UPC offers streamlined litigation across multiple EU member states, it also requires companies to make deliberate choices between centralized and national enforcement routes. Joint Dialogue: Cross-Border Action Checklists During the joint dialogue session, Christine collaborated with the Chinese legal team to provide practical compliance checklists for cross-border business activities. She advised Chinese companies to: Conduct prior trademark and patent clearance in target EU countries; Evaluate whether to opt in or out of the UPC system; Prepare legal strategies in case of emergency injunctions or enforcement challenges. Likewise, she shared insights for European companies expanding into China, particularly on navigating local IP enforcement procedures and understanding the nuances of evidence collection in cases involving trade secrets. This seminar highlighted the increasing importance of IP compliance in cross-border business, especially as more Chinese companies “go global” and more European businesses expand into China. Aurilex remains committed to providing in-depth legal support tailored to the needs of international clients operating across jurisdictions.
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