La règlementation des contenus illicites circulant sur le reseau internet en droit comparé

2) The intervention of the legislator

The authorities tried to clarify the mode of responsibility for the PSI following the various caused debates on the one hand, by the businesses treated in front of the courts and, on the other hand, by the doctrines. Initially, after amendment BLOCHE, was adopted the Law n°2000-719 of 1 August 2000 amending the Law of September 30, 1986 relating to the freedom of communication^190(*) (1), come to anticipate the transposition of the Directive on the electronic trade^191(*) (2). Thereafter, France transposed this European text completely, which generated important polemizes (3).

a) The Law n°2000-719 of 1 August 2000 amending the Law of September 30, 1986 relating to the freedom of communication : a contradiction surprising with the European provisions

Following the Hallyday business, the French National Assembly adopted the bill amending the Law of September 30, 1986 relating to the freedom of communication, promulgated on August 1, 2000^192(*). It creates a new chapter and inserts articles 43-7 to 43-10. The mode set up is more protective suppliers of lodging compared to former jurisprudence^193(*). Nevertheless, it should be specified that this new legislation is in total contradiction with the Directive on the electronic trade with regard to the responsibility for the FAI and lodging^194(*). The doctrines suggest with the judges, in this case, « to follow the Community provisions since the national provisions are the exact opposite one »^195(*).

Article 43-7 of the Law of August 1, 2000 provides for the FAI, that they will have to provide means of filtering^196(*) to their customers without no reference to their responsibility being made. They seem thus always subjected to the common right. Moreover, this text does not envisage any sanction in the event of nonrespect of this obligation. It thus proves in total contradiction with the Directive on the electronic trade^197(*) which withdraws, by principle, the technical person receiving benefits with any responsibility^198(*). The suppliers of infrastructure and mask are regulated by no provision.

On the other hand, for the technical intermediaries, article 43-8 of the Law of August 1, 2000 lays down an exemption of responsibility. It lays out that :

« The persons or entities which ensure, on a purely free or expensive basis, direct and permanent storage for provision of the public of signals, writings, images, sounds or messages of any nature accessible by these services, are penally or civilly persons in charge because of the contents of these services only :

- if, having been seized by a legal authority, they did not act promptly to prevent the access to these contents ;

- or if, having been seized by a third estimating that the contents that they lodg are illicit or causes an injury to him, they did not proceed to suitable diligences ».

This last provision was censured by a constitutional Council Decision of July 27 2000^199(*) which declared it unconstitutional. It considered that the conditions of sasine by a third were not sufficiently precise and that the article did not determine in a rather clear way « essential characteristics of the faulty behavior likely to engage if necessary, the responsibility for the interested parties »^200(*). Consequently, the responsibility for the supplier of lodging is limited to the only sasine for the judge. These operators must only submit with the injunctions of justice and are held with no other vigilance^201(*). There is thus an absence of responsibility whereas there is one in the Directive on the electronic trade^202(*). The judges interpreted besides these provisions like posing a principle of irresponsibility of the shelterers^203(*). This mode does not allow any more the application of articles 1382 and 1383 of the French Civil code to the litigations born between third and suppliers because of the contents of a lodged site^204(*).

The new text also envisages provisions to allow « identification of any person having contributed to the creation of contents » and the capacity gives to the legal authorities of « to require communication near the people receiving benefits »^205(*) of the data which milked with the identification of the creators of site. Article 43-10 of the Law of August 1, 2000 lays out that the person receiving benefits holds at the disposal of the public certain elements of identification. It is thus about a mode excluding anonymity.

This law wanted to anticipate the Directive on the electronic trade but the result was disappointing^206(*), since it comprises many contradictions with the latter.

* ¹⁹⁰ Id. (quoted hereafter «  Law of August 1, 2000  »).

* ¹⁹¹ Directive on the trade electronic, above mentioned, note 176.

* ¹⁹² Law of August 1, 2000, above mentioned, note 17.

* ¹⁹³ The judges subjected the suppliers of lodging to obligations of monitoring of the contents circulating on their waiters in particular with an obligation of vigilance and diligence.

* ¹⁹⁴ Agathe LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », Com. Com. électr. February 2002. chron. n°5, p. 16  : «  the supplier of access seems to have remained subjected to the common right when the directive withdraws it by principle from any responsibility, while the responsibility for the supplier of lodging reaches a maximum with a threshold lower than than considers the directive  ».

* ¹⁹⁵ Id.  : Matter of ALIVE Michel taken in the article of A. LEPAGE.

* ¹⁹⁶ The Fillon AMENDMENT of June 1996 is aimed here since it had tried to introduce the software of filtering into the revision of this law.

* ¹⁹⁷ Directive on the trade electronic, above mentioned, note 176. It authorizes the Member States to take such obligations of filtering in Considering 40 of the Directive  : «  the people receiving benefits of the services have, in certain cases, the duty to act to avoid the illegal activities or to put an end to it. The present directive must constitute the adequate base for making of fast and reliable mechanisms making it possible to withdraw illicit information and to make the access to those impossible. It would be appropriate that such mechanisms are elaborate on the basis of voluntary agreement negotiated between all the parts concerned and that they are encouraged by the Member States (...)  ».

* ¹⁹⁸ Id., art 12  ; See A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194.

* ¹⁹⁹ Decision n°2000-433 cd. of July 27, 2000, Law amending Law N 86-1067 of September 30, 1986 relating to the freedom of communication.

* ²⁰⁰ Id.  ; See Gerard HAAS and Olivier of TISSOT, the new mode of responsibility for the shelterers instituted by the Law n°2000-719 of 1 August 2000 amending the law n°86-1067 of September 30, 1986 relating to the freedom of communication, Com. Com. électr. March 2001. n°29, p. 24.

* ²⁰¹ Michele TABAROT, n°608 Report/ratio on the bill (n°528) for confidence in the numerical economy, National Parliament, February 11, 2003, on line on  : site of the French National Assembly < http://www.assemblee-nat.fr/12/rapports/r0608.asp > (site visited on March 13, 2004).

* ²⁰² Directive on the trade electronic, above mentioned, note 176, art 14.

* ²⁰³ SA Ciriel C. SA Free, TGI Paris, ord. ref., February 6, 2001, Com. Com. électr. May 2001. Com. n°50, obs. CH. THE STANC.

* ²⁰⁴ The new text founds a specific mode for the suppliers and the rule wants that the special texts derogate from the general texts. See G. HAAS and O. of TISSOT, loc. cit., note 200.

* ²⁰⁵ Law of August 1, 2000, above mentioned, note 17, art 43-9.

* ²⁰⁶ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 13.