How to kill a blog post with a single email (and shoot yourself in the foot)

About two years ago, Bits of Freedom demonstrated that one could easily get a European ISP to pull public domain material using unsubstantiated legal threats. It only took them a Hotmail account. This week, the SNCF (Société Nationales des Chemins de Fer français, the French national railways company), thanks to Typepad and the French law, demonstrated that one can do the same with a blog post.

Xavier Moisant runs a small collective blog titled "Train train quotidien" (a French expression meaning daily routine) focused on denouncing recurrent timetable and traveling conditions problems routinely endured by the travelers on the Le Havre-Rouen-Paris train line run by the SNCF. On March 16, he posted some visuals made by a certain "Teddy" that parody several SNCF visuals, to illustrate the recurring lateness of its trains, such as this one:

Donner au train des heures de retard - Société Nationale des Trains en Retards
Meaning, roughly, "make the trains hours late - National Company of Late Trains".

You can check the official SNCF logo and signature on SNCF.fr (it reads "Give the train advanced ideas", there's a play on words as in French retard (late) is antonymous of avance). You can also check the other images from the MS Live Search cache of the deleted post.

Pretending that the blogger had infringed their copyright on their logos and visuals, the SNCF sent an email to Typepad France, and succeeded to get him censored. Typepad promptly (on March 21) deleted the post, its images and comments, then sent the blogger a nasty email backing up the dubious claims:

Following a complaint by the SNCF, we had to delete a post on your blog "Train-train" that contained several visuals using and modifying the SNCF logo. I remind you that this is illegal and, therefore, we have no choice but to suppress this type of content." (Olivier Creiche, Six Apart Europe General Director)

Trouble is, modifying a logo when done in the clear purpose of parodying, mocking or denouncing something, rather than being illegal, seems to be backed up by several jurisprudence: Esso against Greenpeace France22 (E$$O, 2003), Arreva vs Greenpeace (2003), Danone vs Réseau Voltaire (jeboycottedanone.com, 2003), where the appeal court consistently dropped charges made for copyright infringement, reasserting the freedom of communication against commercial trademarks. IANAL, but I'd not bet a buck on the legal ground used by the SNCF in this case. French law punishes with a one-year prison and 15,000€ fine sentence whoever maliciously uses the Electronic Communications law to take some online content down.

I think it's fair to say that this blog was relatively unknown until the SNCF made this move. Now, it's on the radar of prominent bloggers, and the story and those images have been aired on several trafficky blogs. A big mistake in terms of communication, and a demonstration that the blogs dynamics is something corporations need to understand better.
A few figures to illustrate this point, using Technorati ranks of the top 5 blogs referring to the story:

Ironically, Typepad now hosts several copies of the images that the SNCF wanted to take down. What are they going to do now? And good luck with trying to play that game with my host ;-).

On an aside note, I think Typepad France made two mistakes:
- not warning the blogger in advance, allowing him to backup the post, files and comments
- claiming that what he did was illegal (how do they know?), instead of simply saying "we're sorry but we received a complain and the law forces us to take the following measures..."

P.S. (March 24): Olivier Creiche from Six Apart left a comment here to point out his follow-up response to the blogger. I find it impressive because, not only did he apologize for the chronology of events, but he went further than the confort zone provided to web hosts by French law (i.e. he could have left things as is in a status quo) by asking the SNCF to backup its threats with a legal procedure, otherwise Typepad will republish the note in 8 days. Pretty courageous when the law clearly favors cowardliness in this case, so Kudos guys!

2 Comments

Hi François,

I agree with you on the mistakes made... about the process used to delete the elements at stake... because I'm responsible for this.
As for the rest and the role the french law is asking us to play, I actually responded to Xavier tonight on this subject explaining our position. For your french speaking readers, it takes place here:
http://xmo.blogs.com/train_train_quotidien/2007/03/au_sujet_de_la_.html
Bye,

Olivier Creiche (Six Apart)

Olivier, thanks, this is an impressive response! Good illustration of the flaws of the French law in this matter, and the challenges it creates for both editors and hosts.

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