Social network sites combine different features which allow users not only to communicate but also to publish multimedia content such as images, music or videos (Trudel P./Abran F., Gérer les enjeux et risques juridiques du Web 2.0 [Managing the Legal Issues and Risks Associated with Web 2.0], CEFRIO, 2012, p. 37). In other words, operators of social media platforms provide users with a system for exchanging content. The operators determine how users can interact within a network and decide what kind of behaviour is not acceptable or permitted (Federal Council, La responsabilité civile des fournisseurs de services internet [Civil Liability of Internet Service Providers], Report of the Federal Council of 11 December 2015, p. 19).
According to art. 50 of the Swiss Code of Obligations (SCO), if several people cause damage collectively, they are jointly and severally liable for reparations and no distinction is made between the instigator, the main perpetrator and the accomplice. It is therefore extremely important to know whether the operator of the social media platform may be seen as a participant in the copyright violation and, if so, when can it be deemed that the operator’s involvement began (Federal Council, La responsabilité civile des fournisseurs de services internet [Civil Liability of Internet Service Providers], Report of the Federal Council of 11 December 2015, p. 41). In other words, can the operator of the social network be considered to be jointly liable for the damage caused? Two situations come into play here.
The operator of the social media site was aware of the illegal activity, for example because it had been alerted to the fact, but did not take any measures to prevent or stop the illegal act;
The operator of the social media site should have been aware of the illegal activity but, due to negligence, did not take any measures to prevent or stop it.
In each of these situations, the operator of the social network could become liable if it continues not to take action. It should therefore put measures in place to block the content in question, taking care not to block access to permissible content (Salvadé V., Droit de l’auteur et technologies de l’information et de la communication [Copyright and Information and Communication Technologies], Schulthess, Geneva, Zurich, Basel, 2015, p. 39).
As a general rule, social media sites offer copyrights holders a whole host of ways to contact them and flag issues in order to limit their risk of joint liability. For example, YouTube provides an automatic detection system for content which violates copyright known as “Content ID”. It compares new videos with a database of protected material in order to allow authors to take fast action.