Can search engines be ordered to filter all results containing certain keywords or a combination of certain keywords?
In a nutshell, this was the issue that the Tribunal de Grande Instance de Paris (TGI) addressed in the context of litigation between the French Syndicate of Phonographic Publishing (SNEP) and Microsoft. In its decision the TGI answered the question above in the negative.
Claiming that the Bing search engine allowed users to access infringing copies of phonograms or video recordings, SNEP sought an injunction against Microsoft to implement filters on Bing (under all top level domains) to prevent – for a period of 12 months – the display of results containing in their domain name the word ‘torrent’ provided when conducting a query on the word ‘torrent’ plus the following artist names: Kendji Girac, Shy’m or Christopher Willem, they being among the most popular French artists of the moment.
According to SNEP, of the first 20 results displayed further to a query of this kind on bing.fr, the vast majority (70%) related to unlicensed sources.
SNEP’s action was based on Article L336-2 of the French Intellectual Property Code (IPC), by which France transposed Article 8(3) of the InfoSoc Directive into its own national law. This provision of EU law mandates upon Member States to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
Microsoft claimed that SNEP’s action should be dismissed on grounds that – among other things – SNEP should have first used Bing’s free reporting and removal tool and requested to have relevant results (identified by means of appropriate URLs) de-indexed.
Injunctions are independent from a finding of intermediary liability
The TGI noted at the outset how injunctions pursuant to Article L336-2 IPC/Article 8(3) InfoSoc Directive can be sought independently from a finding of liability of the online intermediary at hand. This conclusion is not surprising also in light of the Ecommerce Directive and has been recently confirmed by Advocate General Szpunar at para 83 of his opinion in McFadden (learn more about that case here).
No need for notice-and-takedown first
This said, the court rejected Microsoft’s argument that SNEP should have first reverted to the submission of notice-and-takedown requests. There is nothing in Article L336-2 ICP that suggests the contrary.
Yet, one cannot seek to de-index all ‘torrent’ queries
However, the TGI dismissed SNEP’s action, on grounds that injunctions pursuant to Article L336-2 ICP can be granted in relation to specific, identifiable contents, and the measures sought must be determined, proportionate, efficient and specific in relation to each listed site. This was not the case of SNEP’s request.
According to the court, SNEP’s request was:
- Indeterminate, in that it was not limited to the existing phonograms of Kendji Girac, Shy’m, and Christopher Willem, but also future works yet to be created and released;
- General (as opposed to specific) in that it did not concern an identified site, but rather all sites made available through Bing in response to users’ queries for [artist’s name] + torrent;
- Ineffective and not strictly necessary, since it would obtain a limited result and it could be easily circumvented by users.
According to the TGI, ‘torrent’ is not necessarily associated with infringing content (indeed, “torrent” also means “a strong and fast-moving stream of water or other liquid”) but is rather a neutral term referring to a communication protocol developed by BitTorrent.
According to the TGI, the measure sought by SNEP, ie de-indexing of queries for artists associated with ‘torrent’, would amount to a general surveillance measure and could unduly cause the blocking of legitimate sites.