Who: AXA Assets of London and FXBTrade Ltd
Where: Paris Court
When: 22 September 2014
Law stated as at: September 2014
What happened:
A Paris Court ruling of 22 September 2014 imposed an injunction on several French internet hosting service providers and internet access service providers to block access, from French territory, to two financial websites infringing French financial services regulations: www.axatrades.com and www.fxbtrades.com. Both websites are operated by AXA Assets Ltd, an English company based in London.
In this matter, the French financial market regulator (the “AMF”, Financial Market Authority – Autorité des Marchés Financiers ) was made aware that AXA Assets Ltd was offering financial and investment services in France via its websites without being registered either with the official financial agents registry in France or in its country of origin, i.e., the United Kingdom, which is illegal.
The AMF first sent a cease and desist letter to this company and to FXBTrade Ltd company, a Switzerland company, the publisher of www.fxbtrafdes.com, (which seems to be a subsidiary of AXA Assets Ltd). both letters remained unanswered. The AMF then sent a letter to the hosting service providers of both websites (Poundhost Internet Limited, an English company and Solar Communications GmBH, a Switzerland company) to inform them that AXA Assets Ltd was illicitly operating the websites in France and to ask these providers to spontaneously render unavailable all access to these websites from within France.
As this request was not complied with, the AMF brought an action, by way of summary proceedings, before the Paris Court against the above-mentioned hosting providers and against all major French internet access service providers (Orange Telecom, SFR, Bouygues, Free, Numéricable, Colt Technologies, etc.) to enjoin them to take all necessary measures to prevent access, from French Territory, to these websites. The Court granted its request.
Why this matters:
This decision is a rare application of the French notice and take down legal provisions outside of IP infringement matters. The hosting providers argued that specific provisions of the Financial and Monetary code allow the AMF to bring actions in summary proceedings directly against the author of the litigious acts and that the AMF action should not have been directed against them.
The Court replied that such possibility of an alternative course of action did not prevent the AMF from relying on the general provisions of the French Act for trust in the digital economy (“LCEN”). This implemented E-commerce Directive n°2000/31/CE dated 8 June 2000 (Notice and Take down process) and set forth that a court may order, in summary proceedings, hosting providers, or, failing that, internet access providers, to take any and all actions in order to prevent or stop any illicit or infringing activity on internet websites.
As a result, the Paris Court ordered the hosting providers, and in case of default by them, the access providers as well, to block access to these websites from France. As Poundhost Internet Limited had already blocked the access to the litigious website during the proceedings, only Solar Communications GmBH was facing a 10,000 euros penalty per day of non-compliance with the court order, should such company fail to comply with the decision within eight days. Both websites were rendered inaccessible from France within a few days.
The French Act for Notice and Take Down could thus clearly prove a powerful deterrent weapon against any foreign website accessible from France but not in compliance with French regulations.
