Other people's feeds, YOUR liability risk; and linking risks

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If you show content from other sites' feeds in the body or sidebar of your blog or website, you could get sued for their content, at least in France. A recent case there is, it seems, the first ever instance in the world of a court holding a site responsible for someone else's RSS feed content.

This is a seriously bad development in my view. Lots of people display content from other sites' RSS feeds on their own web sites, for interest or for convenience, or because they think it's helpful for their readers, and of course that content will automatically be updated as the feed updates. It's dead simple to do this, e.g. see below where I show BBC News content by using RSS2JS and the BBC's feed URL, then pasting the resulting Javascript code into the body of my post (if you try this, in Blogger make sure you get rid of the new lines / carriage returns so that the code just follows on in a row; other tools to generate the script, in a more customisable way, include Feedo Style):


Blogger bloggers can, even more easily, display snippets from others' feeds in their sidebar etc using Layouts, Add a page element, and just pasting in the newsfeed URL - see e.g. this example blog with the BBC news feed contents in its sidebar.

People who do this know that their website or sidebar will just rotate through the latest content that's in the feed of the source website which they chose. (If you're new to news feeds, see my detailed practical introduction to feeds and how to publish and publicise your own feed.)

Now, you can pick the sites whose feed contents you want to show on your own blog or site - that's clearly entirely your choice, and within your control - but you can't possibly control what that third party source blog or site decides to say on its own site / feed. You just can't do that - it's their feed, not yours; their content, not yours. You've only selected the source sites; you have no say in their content, only in the selection of the base source site. One would have thought that would be obvious.

Unfortunately, in March 2008 a French court Tribunal De Grande Instance De Nanterre thought that choosing to display the feed of a source site (Gala.fr) on their own websites was enough to make 3 websites (Planete Soft, Aadsoft and LesPipoles) responsible for the content published by the base source site, IT law news site Out-Law recently reported.

In this case Olivier Dahan, director of Oscar-winning movie La Vie En Rose, complained that an article in Gala.fr about him and actress Sharon Stone was an invasion of his privacy, which is a breach of French law: France is very protective of the right to a private life. He sued - and won against - not only the original publisher of the article, Gala.fr, but also the 3 sites that had published Gala's RSS feed on their own sites, which were ordered to pay between €500 and €800 plus €1,000 costs each. It would have been more, but the judge noted that not many people had viewed the material.

Even though the sites made the point that they had no editorial role in those particular articles, according to Out-law's translation of the Tribunal's ruling the French court said (my emphasis):

"The RSS feeds in question took in effect the essential features of the article at gala.fr, i.e. the rumour of the relationship between the pursuer and the American actress Sharon Stone... The defender has, in signing up to the order and organising them according to their themes, acted as an editor and must therefore assume responsibility for the information which is displayed on his own site... In this particular case the RSS reader displayed information not only made up of a simple link but both the title and the snippet of the information appeared: 'Sharon Stone and Olivier Dahan, the star has a romantic embrace with the director'. This was sufficient to constitute an attack on his private life."

Out-law thought that this decision could totally change the nature of RSS in France. French bloggers / websites may not want to display any third party feeds on their own sites, because it's impossible for them to check every single item that appears via those feeds, so it would be safer for them to stop showing other feeds completely.

That's not good at all. I don't think it's right that merely choosing to display someone else's feed on your own blog should make you liable for their specific content. I could understand the result if those sites had chosen to show the feed of a tabloid-like source site known for publishing privacy-invading material, like The Sun (and I have no idea whether Gala.fr is that kind of site). Maybe then they could be taken to have known that there was a risk of privacy-invading material being displayed via the feed.

But if you decide to select the feed of a respectable site like the BBC News site to display on your blog, why should you get sued if one article in the feed would be considered a breach of privacy in France? Why should you be forced to monitor and maybe even censor the stories from the feeds you display on your blog?

Indeed it's not just invasion of privacy that's a danger if you want to display other people's feeds on your own site - any content that's unlawful in France, e.g. defamatory material, could expose you to liability if you show a feed with that content on your own site.

Risks from linking

Olivier Dahan's lawyer Emmanuel Asmar also recently helped Kylie Minogue's ex-boyfriend Olivier Martinez win a lawsuit against two bloggers and a website who had only published links to content published elsewhere which had invaded his privacy. Even though the website was a Digg-like site publishing links submitted by its readers, the tribunal still took the view that it was responsible for the content, rejecting the argument that it was merely a services provider not an editor.

According to the French court, once you decide to publish information which by nature was a violation of someone's private life, you're responsible for it. (See Out-law's detailed summary of those lawsuits.)

What about the risks for bloggers or sites outside France e.g. in the UK? See Robert Lands' excellent overview of the legal risks for websites / bloggers in the UK (copyright, defamation etc), where there was some discussion of the position with links - but not with displaying someone else's content via RSS feeds, which to me is not the same thing as adding a specific link. Out-Law's own expert Kim Walker of Pinsent Masons noted that in the UK the position hasn't yet been clarified. At least in relation to defamatory material you're liable as publisher only if you're instrumental in making that material public, and he thinks it could be argued that by providing a link to it you're effectively helping the world find out about the material: in putting up the link, you've taken a positive act to publish the material.

Interestingly Mr Lands' view seemed to be different, he thought you might be OK in the UK if you were simply linking to defamatory material without repeating its content. Obviously, as there's been no UK court case on disseminating defamatory content via a link, we don't know for sure - and where even experts differ, I'd run for cover! Mr Walker did say in the Out-law podcast about these cases that hopefully, as the Net is based on linking (its raison d'être, I can't resist saying!), UK judges would try hard to avoid a result that put people off linking, given the potential chilling effect (clearly French judges don't seem to care about that sort of minor consideration...). However he thought it was unlikely that using a disclaimer would help protect a website or blog from being held responsible for defamatory content.

Mr Walker also mentioned an 1894 Court of Appeal case (Hird v Wood) where a man who sat beside a defamatory roadside placard was liable for defamation just because he was drawing the attention of passers by to it, and he thinks it would be a fair analogy to use for hyperlinking.

Note that their views were on links to defamatory material - not material that invades privacy, unlike in the French cases - as that's more of a risk for UK websites. (See my report of Mr Lands' talk for more on the legal risks for bloggers and websites in the UK generally.)

Back to France, Mr Asmar said that more celebrities were now suing websites after these cases. I wonder if those cases are going to be appealed? Doesn't look like it...

It seems that if you're famous, it's best to have an affair with a French person - then they can sue anyone who reports it in France! But seriously, it would now seem to be a risky proposition linking to French celeb gossip sites or displaying feeds from those sites. And I really don't know if you could now be sued in France if you link to anything (whether from France or not) that has a story about a famous French person, e.g. re-publishing feeds from French websites. Way to stifle reporting about people in France! And it can't be good for French bloggers or sites generally, as these cases will make people wary of linking to or showing feeds from French sites.

I can understand why a website or blogger might be held liable if they deliberately added a manual link to risky material, and I am all for protecting privacy, but I think it is ridiculous that site owners who republish a third party's feeds should be made responsible for the third party's content (unless of course the owner knew the feed was from a dodgy or risky site that tends to publish dangerous material). I sure hope that the French courts' approach to feeds won't be followed elsewhere in Europe or indeed anywhere else in the world.

By the way, I think the heading of the Out-law article "French websites liable for story in RSS reader" was a bit misleading. I don't believe that just because you subscribe to a French celebrity rumour / news / scandal site in your own private RSS reader, which you then read privately on your own computer, that you'd be sued in France. It's including, on your own site or blog, the excerpts from a feed that contains material which is unlawful in France that could get you into trouble there, as you're helping to publicise that material to the world. (Even more by the by, I think the Out-law site is a great source of tech law news, but it's ironic that although they offer their own RSS feeds, I notice they haven't enabled auto-discovery on their own site!).

Tags: newsfeeds, news feeds, RSS feeds, linking, hyper linking, hyperlinking, liability, defamation, France, Improbulus, A Consuming Experience