Claim Against an Ad Broadcast on a Website Accessible in France but not Targeting the French Audience: Do French Courts have Jurisdiction ?

On October 18, 2017, the French High court held in clear terms that the access to a website (broadcasting an ad challenged on the ground of copyright infringement and parasitism), within the territory of the court where the lawsuit has been brought, is a sufficient criterion to consider that this court has jurisdiction to assess the alleged infringement/fault.

1. The dispute and the arguments of the defendants

A theater company association, arguing that it holds copyrights on shows presenting characters from 7 to 12 meters high, strolling under a specific choreography in the streets of a town, claimed that an ad for Coca-Cola, broadcast in December 2012, in various countries, presents the same characteristics as its creations.

The theater company association initiated summary proceedings before the first degree Tribunal of Paris, on the ground of copyright infringement and parasitism, against Coca-Cola Entreprise (now Coca-Cola European Partners France) and Coca-Cola Services France to have the broadcast of the ad discontinued and the ad withdrawn.

Coca-Cola’s ad agencies, McCann Erickson Worldwide Inc. and McCann Erickson, joined the proceeding voluntarily and challenged, with Coca-Cola, the jurisdiction of French courts.

The defendants claimed, in particular, that the sole accessibility, in France, of the website on which the ad was shown was not sufficient to ground the jurisdiction of French courts (no sufficient, substantial and significant link between the alleged wrongful misconduct and the French market).

They referred to the fact that the website broadcasting the ad did not target the French audience and that the ad was not broadcast in France (the ad was neither broadcast on the French TV nor in movies theater located in France).

2. The decision of the Court of appeal of Paris dated October 22, 2015 : France has no jurisdiction because there is no sufficient, substantial and significant link between France and the litigious websites

The matter was remanded before the Court of appeal of Paris which considered, on October 22, 2015, that French courts do not have jurisdiction because the ad was broadcast on different websites (Google, YouTube, Dailymotion and accessible via Spanish keywords) and was not targeting the French audience because (i) some of these websites were destined to advertising and communication professionals, and (ii) the others were destined to a foreign audience, so that there was no sufficient, substantial and significant link between these websites, the videos posted and the French audience.

This decision of the Court of Appeal follows the previous decisions rendered by the commercial chamber of the French High court[1], but also complies with the EU Regulation n°44/2001 (“Bruxelles I”) pertaining to jurisdictions issues in civil and commercial matters and using the “significant link” criterion.

3. The decision rendered by the French High court (civil chamber) : France has jurisdiction

The decision of the court of appeal of Paris has been overruled, on October 18, 2017, by the French High court (civil chamber).

The civil chamber of the French High court first quoted Section 46 of the Civil procedure Code which states that, on tort law matters, the plaintiff is able to bring, at his/her own choice, a lawsuit, before the courts located where (i) the defendant has his/her residence, or its registered office, or (ii) the wrongful act has been committed, or (iii) the prejudice has been suffered.

According to the civil chamber, the Court of appeal violated the aforementioned provision, when it held that French courts do not have jurisdiction.

Indeed, according to the civil chamber, the access, in France, to a website broadcasting a litigious ad, is sufficient to consider that France has jurisdiction over the dispute; France being the country where the alleged prejudice occurred.

4. Consequence of this decision; uncertainty - the French judges are looming

This decision could been analyzed as overruling in clear terms the previous theory of the French High court according to which the jurisdiction of French courts, in matters involving broadcasting of a video or an ad, must not be assessed with the accessibility criterion, but rather with the one imposing a sufficient, substantial and significant link between the website at stake and the French audience.

French authors, however, consider that one should wait for other decisions of the French High court (in particular its commercial chamber according to which, until today, the “significant link” theory prevails over the accessibility criterion) in order to determine whether or not this decision will mark the beginning of a new era, where the jurisdiction of French courts, in tort law/copyright infringement matters committed over the internet, is to be expended.