The responsibility of an email provider

The e-mailing provider is a professional who sends, on behalf of a third party (or principal), all kinds of messages (including commercial) by electronic means.

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Chapter 1. The situation of the problem

As you know, the sending of canvassing is strictly regulated.

Indeed, it is strictly forbidden to send commercial e-mails without the express consent of the recipient (L34-5 of the Post and Electronic Communications Code).

The sanction can go up to 15.000 € (sanction pronounced by the CNIL, L34-5 of the Post and Electronic Communications Codeparagraph 8).

But, we can ask ourselves if the technical provider, to whom a third party "orders" to send e-mails to a list of given prospects, could be sanctioned because of this order.

Chapter 2. The response of one of these providers

As it is difficult to know, from a simple e-mail, if the person who sends it to you is a technical provider or not, I sent a number of formal notices (LRAR) to people who " spammed ".

In this case, one of these people declared me to be a technical service provider and replied:

reponse_presta I found this answer interesting from the legal point of view: does the LCEN law protect the technical provider of e-mailing?

Chapter 3. Legal Analysis

Section 3.1. LCEN

The law for confidence in the digital economy (LCEN) provides, indeed, that some people do not see their responsibilities incurred if they did not know the illegal nature of their actions.

However, is this true for e-mailing providers?

TheArticle 6 of the LCEN provides that:

2. Natural or legal persons who provide, even free of charge, for making available to the public by means of online public communication services, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services can not be held liable for activities or information stored at the request of a recipient of those services if they did not have actual knowledge of their unlawfulness or of facts and circumstances showing that characteristic or if, from the moment they had this knowledge, they acted promptly to remove the data or to make access impossible.
The preceding paragraph does not apply when the recipient of the service acts under the authority or control of the person referred to in that paragraph.
3. The persons referred to in 2 can not be held criminally liable because of the information stored at the request of a recipient of those services if they did not have actual knowledge of the unlawful activity or information or, from the moment they became aware of it, acted promptly to withdraw that information or make access impossible.
The preceding paragraph does not apply when the recipient of the service acts under the authority or control of the person referred to in that paragraph.

In other words, the people who can benefit from this exemption from liability are only those who provide:

  • the storage signals, writings, images, sounds provided by customers / users (ie blogs);
  • the storage messages of any kind provided by clients / users (ie discussion forums).

In this case, the e-mailing provider does not store anything (or at least, one does not seek its responsibility because of a storage of information that it could do): he sends e-mails.

Therefore, the LCEN must not be regarded as an absolute protection for "technical service providers" of any type.

Thus, the technical service provider who sends commercial e-mails at the request of a third party can not invoke the provisions of the LCEN to exonerate himself from his responsibility: he is automatically responsible for the mere fact of sending ( ie the article L34-5 of the Post and Electronic Communications Code applies without difficulty).

Section 3.2. The possible guarantee call

However, this does not mean that the e-mailing provider is solely responsible if it sends unsolicited sales pitches, and if a third party orders it (ie the ordering party).

A call in guarantee seems, indeed, possible towards the latter. The guarantee call is an action brought by a person who is summoned to sue for another person (here, the client) to be substituted for any convictions.

The legal justification for this guarantee is then theArticle 1382 of the Civil Code (quasi-delictual fault of the client).

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