Political cybersquatting: cases under French law
Cybersquatting is the act, in bad faith, of registering a domain name without being able to justify a right or a legitimate interest on this domain name. It regularly strikes political figures, as recently attested by a case involving the current Australian Prime Minister, Mr. Scott Morrison (“Scottmorrison.com.au and Scotty Doesn’t Know or the woes of the Australian Prime Minister,” iptwins.com, 2018-12-28).
In all likelihood, the French Former French health minister, Ms. Agnès Buzyn, appears to be the victim of political cybersquatting. In fact, in a short article published on February 17, 2020, the French newspaper Liberation indicated that the domain names buzyn2020.fr and agnesbuzyn2020.fr were redirected to Ms. Anne Hidalgo’s website (liberation.fr, 2020-02-17). It should be noted that Ms. Buzyn and Ms. Hidalgo are both candidates for the Paris municipal elections, which will take place on March 15 and 22, 2020. Ms. Hidalgo, who is the current mayor of Paris, immediately indicated that her team had nothing to do with this maneuver (liberation.fr, 2020-02-17). As a reminder, it was on February 16, 2020, that Ms. Buzyn was appointed by La République En Marche (LREM) to lead the municipal election campaign in Paris.
The first domain name, buzyn2020.fr, was registered on February 16, 2020, immediately after the appointment of Ms. Buzyn. Such promptness in the registration of domain names tainted in bad faith is usual in the announcement of a commercial partnership or a merger-acquisition between two renowned brands (iptwins.com, 2018-09-12), the release of a new product from an equally famous brand or when a city is a candidate for the organization of the Olympic Games. It is rarer in politics!
As for the second domain name, agnesbuzyn2020.fr, it was registered on February 21, 2020, as evidenced by the Whois file below.
Since the entry into force of the general data protection regulation (known as “GDPR”), the personal data contained in a whois file (which is the identity card of a domain name) originating from a database subject to European Union law are no longer accessible to the public.
Concerning the legal procedure, the differences between judicial and extra-judicial procedures are numerous and profound. On the one hand, the extra-judicial procedure has only a reinvindicatory purpose so that the plaintiff can only obtain the transfer of the domain name, to the exclusion of any other request. On the other hand, judicial procedures are both reinvindicatory and remedial, which makes it possible to claim remedies or provisional measures. Moreover, under French law, the summary procedure makes it possible to obtain a judicial decision expeditiously. Finally, extrajudicial decisions, which are sometimes described – and very improperly – as arbitration, are not final and can be overturned by a court.
The extra-judicial set of decisions offers several examples of domain names similar or identical to the names of politicians. We can note some of them. Without setting out a detailed summary, it can be said that, in general, if a transfer request has been rejected, it has been justified by the exercise of freedom of expression.
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French judges have only been called to hear cases of political cybersquatting in a few cases.
Paris Court of First Instance, 12 juillet 2004, François Bayrou / Stéphane H.
Mr. François Bayrou, then a member of the National Assembly and president of the UDF political party, sued Mr. Stéphane H. for interim measures for the registration and use of the domain name francois-bayrou.fr, which had been publicly put on sale. Mr. Bayrou had based his request on Article L. 711-4-g) of the French Intellectual Property Code, which prohibits the filing of a trademark infringing prior rights, including the rights of the personality, among which is the patronymic name. This legal basis was erroneous since the case was not about a trademark, but a domain name. However, Mr. Bayrou was successful.
The president of the Paris Court of First Instance had ordered: 1) the closure of the website (more exactly the closure of the webpage concerned and not of the website itself), within two days of the service of the order, and this under penalty of 2,000 euros per day of delay; 2) the transfer of the domain name under penalty of 2,000 euros per day of delay at the end of the period of eight days following the service of the order and 3); Mr. Stéphane H. to pay Mr. Bayrou the sum of 5,000 euros in moral damages (Paris Court of First Instance, July 12, 2004, François Bayrou / Stéphane H.: Legalis.net).
Paris Court of First Instance, 22 mai 2007, Françoise Tenenbaum / Bernard Depierre
Ms. Tenenbaum, then vice-president of the Regional Council of Burgundy, deputy mayor of Dijon and candidate for the national parliamentary elections, sued the Association for the financing of the campaign of Mr. Bernard Depierre (Afcbd), opponent to Ms. Tenenbaum, and also candidate and for the national parliamentary elections, in order to stop the use of the domain name francoisetenenbaum.fr which was redirected to the website of Mr. Bernard Depierre. It turned out that the domain name had been registered and used by a third party. However, as soon as it was served with a summons, the Afcbd managed to have this redirection removed and even offered to transfer the domain name to Ms. Tenenbaum, without delay and free of charge. This loophole clearly reflected a link between the domain name holder and the Afcbd. However, this link was more than tenuous since the first was a member of the second and, as such, also the author of the content of Mr. Depierre’s website. Hence the decision of the president of the Paris Court of First Instance:
“the Afcbd, holder of the disputed domain name must, in any event, respond to the harmful consequences towards third parties of the actions of its agent, should it exceed its powers;
The circumstances of the case justify granting the request for publication of this decision (on) the websites concerned”.
Following this, the president of the Paris Court of First Instance had provisionally ordered the Afcbd to pay Françoise Tenenbaum the sum of 5,000 euros on damages. The judge also ordered the publication of the decision, on the front page of the websites concerned, for the duration of the legislative election campaign. Finally, the summary procedure made it possible to obtain a decision in just a few days (summons on May 16, 2007; order on May 22, 2007) (Paris Court of First Instance, May 22, 2007, Françoise Tenenbaum / Bernard Depierre: Legalis.net).
Saint Malo Court of First Instance, March 7, 2008, Louis L. / Pierre Yves M.
The case opposed two candidates running for the mayor of Cancale (Britanny), in the municipal elections of 2008: Louis L. and Pierre-Yves M. The active webpages invited the voter to click on a link that redirected the later to the site of the political opponent. These are the circumstances in which Louis L. summoned Pierre-Yves M., again in urgent proceedings, before the Saint-Malo Court of First Instance. Relying on the provisions of articles 808 and 809 of the French Code of Civil Procedure and R. 20-44-46 of the French Post and Electronic Telecommunications Code (modified since), he requested, in particular, the deletion of these domain names. In this case, the judge granted the request of the candidate Louis L, noting that this political cybersquatting act was “unworthy of a democratic debate”, constituted a reprehensible usurpation of identity within the meaning of the provisions of what was still article 1382 of the Civil Code (today Article 1240) and the former article R. 20-44-46 of the Post and Electronic Communications Code as resulting from decree no. 2007-162 of February 6, 2007 (which was later described as unconstitutional: see Constitution, dec. No. 2010-45, QPC, Oct. 6, 2010, Wolters Kluwer/RLDI 2010/64, No. 2119 and not our comment “L’encadrement du nommage internet à l’épreuve des droits et libertés fondamentaux. À propos de la décision n° 2010-45 QPC du 6 octobre 2010″, RLDI, nov. 2010, No. 65/2130, p. 18). According to the Saint-Malo Court of First Instance, the question of who had carried out the registration of domain names was ineffective; it was enough to note that Pierre-Yves M. could not ignore what was being done in his name and in the name of the team for which he was responsible. Furthermore, the judge emphasized the gravity of the fault, stressing that it had been “committed in an entirely deliberate manner in order to damage a competing candidate […] that the process used [was] unworthy of a democratic debate [and that it had] obviously been put in place in order to harm Louis L. politically“.
Finally, the judge in summary proceedings ordered in particular: 1) the deletion of domain names within 48 hours from the service of the order, and this under penalty of 300 euros per day of delay; 2) the publication of the decision on the first home page of the two websites for ten days; 3) the publication also in the local press, at the expense of Pierre-Yves M. and 4) the payment of the sum of 5000 euros as a provision to be claimed on damages (Saint-Malo Court of First Instance, March 7, 2008, Louis L. / Pierre Yves M.: Legalis.net).
It appears from the summary orders issued by the presidents of the Paris and Saint-Malo Courts of First Instance, respectively in 2007 and 2008, that the legal person supporting the candidate, the campaign team or the candidate himself/herself is likely to engage his/her liability when the registration and use of the domain name comes from a member of the team working for the electoral campaign, which can be likened to vicarious liability. In addition, it should also be noted that the publication of the decision on the website of the sentenced candidate seriously tarnishes the image and the moral of the latter. It is, therefore, up to the parties and the head of the team to make their campaign teams aware of these issues.
In some cases, it would even be advisable to go further and consider the adoption, by politicians, of proactive protection strategies (registration of domain names before any public declaration), and online surveillance strategies (among domain names but also on social networks and the web), like celebrities and brand owners, do.