Judicial removal of defamatory content in cases of author anonymity.

The Cour de cassation, in a notable judgment of February 26, 2025 (1st civ., n° 23-16.762, published), held that potentially defamatory content may be subject to an injunction to remove, even in the absence of an adversarial debate with its author, when the latter has deliberately remained anonymous.

This solution constitutes a measured but significant evolution of classical jurisprudence on manifest unlawfulness, and raises important issues concerning the regulation of online content.

I. A jurisprudential context long dominated by the requirement for adversarial proceedings.

1\\. The orthodoxy of manifest unlawfulness.

Judicial regulation of content published on the Internet is based, since the Law of June 21, 2004 for confidence in the digital economy (LCEN), on a regime of attenuated liability for hosting providers.

The latter can only incur liability if they had actual knowledge of the manifestly unlawful nature of content, or if they did not act promptly after being duly alerted.

The fact that a “_manifestly unlawful_” character is no longer required since Law No. 2024-449 of May 21, 2024, aimed at securing and regulating the digital space, does not alter this central principle of hosting providers' liability [1\")\\].

The consistent jurisprudence of the Cour de cassation has coherently conditioned any injunction to remove on proof of this manifest unlawfulness.

A mere allegation of defamation is not sufficient: it is necessary to rule out hypotheses where the truth of the facts could be established or the excuse of good faith invoked, in accordance with the Law of July 29, 1881, and jurisprudence.

Consequently, lower courts have been particularly reluctant to order the removal of disputed content without the possibility of confronting the author with the claimant, making adversarial proceedings indispensable.

2\\. Defamation, an offense subject to an exceptional regime.

The very nature of defamation requires the implementation of specific procedural safeguards.

It is a criminal offense whose repression is governed by the 1881 Law, which establishes the primacy of freedom of expression in matters of press and public communication.

According to a deeply rooted logic, the qualification of defamation can only be retained if the author cannot justify their statements.

In the absence of adversarial debate, it is therefore impossible, in principle, to classify content as defamatory with certainty. This situation has long led to a legal impasse when the author of content remained anonymous.

II. The case submitted to the court: between impossibility of adversarial proceedings and instrumentalization of anonymity.

1\\. A YouTube channel accusing public figures.

The case decided by the first civil chamber on February 26, 2025, originated from the publication of several videos on a YouTube channel titled “_Les dossiers \"Localité\"_”.

These videos specifically named several local public figures, accusing them of corruption, judicial manipulation, and collusion with economic power.

Considering these statements defamatory or insulting, the targeted individuals, after a formal notice remained without effect, sued Google Ireland Limited under the accelerated summary proceedings provided for by Article 6-3 of the LCEN.

They sought disclosure of the identification data of the account concerned and the removal of the disputed videos.

2\\. Identification made impossible by deliberate maneuvers.

Google transmitted the information in its possession, but it proved to be fictitious.

The email address used was not linked to any verifiable identity, and connections had been made through a virtual private network (VPN), preventing any location or technical identification.

The Paris Court of Appeal, in a judgment of May 31, 2023, had partially granted the requests.

The judges had ordered the disclosure of data but had rejected the request for video removal, considering that the absence of adversarial debate prevented finding manifest unlawfulness of the statements in question.

This reasoning was within the classical framework of jurisprudence on hosting provider liability.

III. The reversal of the Cour de cassation: an unprecedented assessment of proportionality.

1\\. A two-step reasoning.

The Cour de cassation first confirms that the judge can only order the removal of online content if he finds its unlawful nature, i.e., when it is demonstrated that this content exceeds the limits of freedom of expression.

It also recalls that defamation can be dismissed if proof of the truth of the alleged facts is established, or if the author benefits from the excuse of good faith.

However, the High Court considers that this analysis must be adapted when adversarial proceedings are rendered impossible, not by negligence, but due to deliberate conduct by the author aimed at preventing any questioning.

As the identification data provided by the hosting provider is not suitable for identifying the author, freedom of expression should be temporarily set aside, in favor of the claimant's interests within the framework of the proportionality control of the measure imposed on the courts.

The court quashes the appellate judgment for not having examined whether the removal of the disputed statements was, in this particular context, proportionate to the harm suffered by the targeted individuals.

2\\. Reintroducing victim's rights into the balancing of interests.

The court does not substitute an automatic repression logic for that of freedom of expression.

It invites lower court judges to perform a circumstantial balancing of the rights in question.

This analysis must take into account, on the one hand, the impossibility of adversarial debate attributable to the author, and on the other hand, the seriousness of the harm to the reputation of the targeted individuals.

In other words, the judicial removal of online content becomes conceivable in the absence of adversarial proceedings when this impossibility results from a deliberate anonymity strategy.

The judge must then assess whether this measure is necessary and proportionate to the harm caused.

IV. Scope and limits of the decision.

1\\. An inflection, not a revolution.

The judgment of February 26, 2025, does not challenge the principle that freedom of expression constitutes a fundamental right. It preserves its substance by maintaining the requirement of an individualized judicial assessment.

When anonymity prevents the victim from asserting their rights, and no adversarial debate can be organized, the judge is authorized to rebalance the situation by examining whether the maintenance of online content is acceptable in view of the prejudice.

This reasoning remains exceptional.

It does not create a general obligation of removal for hosting providers. It does not exempt the courts from precisely justifying the ordered measure. It does not question the limited liability regime established by the LCEN.

2\\. Towards indirect platform accountability?

This evolution could, however, have practical effects on platform obligations.

If the impossibility of identifying an anonymous author constitutes a decisive factor in granting a removal measure, hosting providers might be encouraged to strengthen the traceability of their users.

The Digital Services Act (DSA) already imposes heightened vigilance on very large platforms regarding manifestly unlawful content.

Conclusion.

The Cour de cassation offers here a renewed interpretation of the adversarial principle, adapted to digital realities.

It does not make anonymity an automatic ground for removal, but it accepts that, in certain circumstances, it may justify a targeted limitation of freedom of expression.

This jurisprudence offers a remedy to victims of reputational harm when no procedural dialogue is possible with the author of the statements. It confers upon the judge an arbitration role, responsible for assessing whether content removal constitutes a necessary, proportionate measure, compatible with the respect for fundamental rights.

Finally, it calls for constant vigilance regarding the uses of anonymity on the Internet. This right, legitimate in many contexts, cannot serve as an absolute bulwark against all liability.