The Court of Paris, upholding Canal+'s applications, has handed down two judgments ordering Google, Cloudflare, and Cisco to take all necessary measures to prevent users from accessing pirate sites. Particular emphasis was placed on the DNS resolvers of the three companies, which allow circumvention of the blocks already ordered by the French courts.
From French jurisprudence come two significant rulings on online piracy and Internet Service Provider (ISP) liability. To better understand what they are about, let us start with the facts of the case.
The facts underlying the dispute
In October 2023, Canal+ company took legal action against Google, Cloudflare, and Cisco aimed at protecting its rights with respect to a hundred sites illegally broadcasting matches from the French Rugby League, Champions League, and Premier League. Specifically, the TV platform owned by media company Vivendi inferred that numerous websites accessible from France systematically broadcast live streaming of matches from various sports competitions for free. Not only that: despite the blocking measures already ordered by the French courts and implemented by several providers, the sites remain accessible through alternative DNS resolvers - a kind of "directory" that converts domain names entered by users into IP addresses of the servers where pages are stored - offered by the companies Google, Cisco and Cloudflare. To be understood, the defendant companies do not directly manage the infringing content, but rather the path to it: not the "cookie jar," but the "secret passage" to get there.
These ISPs, in fact, as part of the multiple services they offer, allow for a ploy well known to web users: although the main French operators have been ordered to prevent access to an illegal streaming service, users can easily circumvent the block by setting up "alternative" DNS on their device such as those offered by Google, Cisco, and Cloudflare, which, at least according to Canal+'s defense, would cover 3/4 of the market.
The legal framework in the French legal system
Specifically, Canal+ demanded that the defendant companies be ordered to implement, within the framework of their respective domain name resolution services (Google Public DNS, Open DNS or Cisco Umbrella, and Cloudflare DNS), all the necessary blocking measures to prevent access to the sites, by any effective means and in particular through the blocking of a number of domain names.
In two judgments dated May 16, 20241, one relating to the Champions League and the other to the Premier, the Tribunal Judiciaire de Paris thus upheld the applications of Société Groupe Canal+ that were based, in particular, on Article L333-10 of the Code du sport. Under the latter, in fact, holders of audiovisual exploitation rights to sporting competitions are entitled to obtain "any proportionate measure" capable of preventing or ending the infringement, against any person "likely to help remedy it". As can be seen, a broad formulation, suitable to encompass any specific technical solution.
Defendants' defenses: the measures would be "ineffective" and the definition of the role of "intermediary" in EU law
The defendants' theses were based basically on two arguments: one of a technical-social nature, the other one of a legal nature.
First, in fact, the defenses of Cisco and Google, as well as Cloudflare had done, argued that the measures requested by Canal+ would be "ineffective" in any case, as they could be circumvented by quickly changing DNS and adopting a VPN. According to the Paris Tribunal, however, the number of users who actually use an alternative DNS service to access a site broadcasting the disputed content, as well as the existence of other services suitable for circumventing the measure, is completely irrelevant to the plaintiff company's ability to request DNS blocking of such sites that broadcast content it owns.
Second, Cloudflare and Cisco argued that they could not be considered intermediaries, as they do not provide transmission services under European Union law, and in particular under Article 8 § 3 of Directive 2001/29/EC, in the light of which the aforementioned Article L333-10 should be interpreted. Moreover, according to the respondents, the latter article would constitute the implementation into French law of the directive of Article 3 § 4 of Directive 2000/31/EC and Article 11 of Directive 2004/48/EC; an apllication to be considered "non-compliant" with the aforementioned directives.
The Paris Tribunal orders: prevent access to sites "by any effective measure" and give notice to the plaintiff
The Paris Tribunal rejected both arguments. Not only does Article L. 333-10 of the Sports Code not represent the transposition of these directives, representing an "innovation nationale" perfectly compatible with EU law, but, in any case, audiovisual exploitation rights of sports competitions are rights related to intellectual property rights and national judicial authorities are legitimized (rectius obliged) to issue injunctions aimed at prohibiting the perpetration of an infringement under Article 11 of Directive 2004/48/EC.
Therefore, the Paris Tribunal ordered the aforementioned ISPs, among other things, to put in place all necessary measures to prevent access to the identified sites identified by Canal+ as well as sites not yet identified as of the date of the judgment, from French territory, by any effective means, in particular by blocking domain names and associated subdomains. As can be seen, therefore, this is a generic and dynamic order. Furthermore, the respondent companies are ordered to inform Canal+ in detail of the implementation of these measures and of the possible technical difficulties, it being understood that in the event that such difficulties arise, or even only because of updating requirements, the most diligent party will be able to take the matter to the judicial authority, as a matter of urgency or upon request.
A look at Italian case law: the role of Cloudflare in the "Sony case"
Casting a glance at Italian jurisprudence, in a perspective that moreover can only partly be defined as "comparativistic," given the common membership in the EU system, particularly interesting symmetries are noted. For example, in an order dated 22.9.20222, the Court of Milan, in the context of the "Sony case," with respect to the DNS "resolution" services offered precisely by Cloudflare, confirmed its own previous order dated 11.7.2022 in which it had ordered the same San Francisco company to "immediately adopt the most appropriate technical measures in order to inhibit all recipients of its services from accessing" certain identified services. In the same venue, the Court of Milan had had the opportunity to clarify that "In this regard, no prior burden can be configured on the plaintiffs, nor any obligation on the part of the AG when pronouncing the precautionary order, to describe the specific technical methods of execution of the order, where - having considered the existence of the activity that is ordered to be inhibited - it is the party to whom the injunction order is addressed that may represent any technical difficulties within the specific procedure pursuant to art. 669 duocecies of the code of civil procedure".
Conclusions
Also in light of these significant convergences, pending the Appellate judgment on the "twin" measures of the Paris Tribunal, there is no doubt that these constitute a further piece in the mosaic of the jurisprudence of EU countries on piracy and ISP liability. A mosaic whose contours appear in the eyes of the interpreter progressively more and more certain.