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In a decision rendered within summary proceedings on November 21st, 2017, the President of the High Court of Justice of Paris has ruled that the ALIBABA entities cannot benefit from the limited liability granted to internet service providers (hosts) by the EC Directive 2000/31 but must be considered as editors, thus liable for the content posted on the platform, in consideration of its active role in the managing of such platform.
According to the Court, such active role of ALIBABA on the content of the website results in particular from the “premium” subscriptions offered to “big international groups” by ALIBABA (the income from which represents 27% of the global income of the ALIBABA group) as these subscriptions lead ALIBABA to favor certain companies, in particular through the ranking of offers and the possibility for the subscribers to create personalized shops. As a consequence, ALIBABA is influencing the content of the virtual shops and therefore has the status of an editor.
The Court also underlined the fact that ALIBABA states that it has enacted a policy to protect IP rights by which it reserves the right to withdraw infringing products, which implies that it exercises a prior control on the content of the offers published on its platform.
As a consequence of the above, the Court states that ALIBABA is held to monitor the licit nature of the information posted on all of the website.
The necessary disclosure of the commercial nature of influencer posts
On June 14, 2017, INSTAGRAM application introduced a new tool enabling influencers to identify their content as being part of a paid partnership, thanks to the tag “paid partner with… ”.
Please find the full analysis made by Gaëlle Bloret-Pucci, partner, and Georgina Van Der Heijden, lawyer, by clicking here.
French Law No. 2017-261, dated March, 1st 2017, aiming to preserve the ethic of sport, strengthen the regulation and transparency of professional sport and improve the competitiveness of clubs, known as "Braillard" law, was published in the French Official Journal on March, 2nd 2017.
Among several provisions, one of them now allows sports federations and professional clubs to remunerate professional athletes and trainers for the commercial exploitation of their privacy rights (name, voice, image ...) with royalties and no longer with a salary.
Article L. 222-2-10-1 of the French Code of Sport enables to distinguish between the remuneration of the athlete and/or the coach for their sporting activity, paid with a salary, and the remuneration for the exploitation of their image (in particular for advertising), paid with royalties.
The remuneration with royalties will thus be possible if the physical presence of the professional athlete is not required for the exploitation of his image and if this remuneration is not related to the salary received for his athletic performance but to the sales revenue or to the exploitation of the attributes of his personality.
The main purpose of this reform is to avoid athletes and trainers from having to pay social contributions on these remunerations, but they will still have to declare them to the tax authorities as non-commercial profits or industrial profits.
The law still have to be completed by establishing detailed rules for the calculation and allocation of this image right.
National agreements or collective agreements, concluded by discipline, should also provide a framework to avoid any abusive use of this new remuneration, by fixing a royalty cap for the athlete or professional coach, as well as a minimum remuneration through the employment contract.