[Episode 3] LAFUMA/ALIBABA: Back to a classic assessment of the status of host

On January 10, 2020, the 3rd Chamber of the High Court of Paris ruled that various companies of the ALIBABA group, operating the online marketplace <french.alibaba.com> in France, were not publishers but hosting companies.

In Episode 1, on November 27, 2017, the Judge ruling within interim proceedings considered that ALIBABA should be regarded as a publisher, responsible for the publication on its website of ads related to chairs infringing the LAFUMA trademarks, in light of various elements demonstrating for the Judge the active role of ALIBABA in the management of the content of its platform.

In Episode 2, the Court of Appeal reversed this interim order on the grounds that the assessment of ALIBABA's active or passive role in the case fell within the jurisdiction of the Judges on the merits.

Seized on the merits, the High Court ruled that it had not been established that ALIBABA had played an active role in the drafting of the wording and content of the ads on its platform but held on the contrary that the purpose of the services provided by ALIBABA was solely technical and logistical, so that the limited liability regime of the host had to apply.

However, ALIBABA does not avoid being sanctioned, since the Court holds that the neutralization of the unlawful ads within three months after notification, which was furthermore carried out under the pressure of interim proceedings initiated on September 28, 2017, does not constitute a prompt response by the host, who shall therefore be held liable.