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

b) The Directive of June 8, 2000 on the electronic trade : a return to a responsibility for the suppliers

The Directive on the electronic trade^207(*) intervenes to define a common legal framework and to facilitate the rise of the company of information^208(*). It was to be transposed in national law before January 17, 2002^209(*). France still did not transpose this text, even if it is in the process of do it. The courts will be obliged thus to take account of the existence of the Directive to interpret the French law as requires it Community jurisprudence or to directly apply the Directive to the electronic trade^210(*).

The European text leaves a great part of initiative to the Member States and, in the event of future divergences, those will be corrected at the time of the re-examinations of the Directive envisaged in article 21. The States should not either take measures which would call into question cultural pluralism^211(*). As for the preceding French law, the person receiving benefits is held to provide certain information in order to limit the cases of anonymity^212(*).

The Directive on the electronic trade, in total contradiction with the French law, took as a starting point the the German Law relative to « Téléservices »^213(*) come into effect on August 1, 1997 and mainly of the American legislation, the DIGITAL Millenium Copyright Act (DMCA)^214(*), promulgated on October 21, 1998 by the American Congress. The American legislator planned for the intermediaries of the conditional exemptions of responsibility which would rise from violations of the royalty^215(*). Their responsibility is thus limited to certain conditions which, once filled, exonerate it. The situation is quite different for the Directive on the electronic trade which poses as principle which the person receiving benefits is irresponsible, except under certain conditions. It takes again same logic as the DMCA by making a distinction according to the activity carried on by this PSI. There are thus three types of activities : simple transport^216(*), it « caching »^217(*) and lodging^218(*). For each one of them, it is necessary to meet certain conditions to profit from the exemption envisaged ; failing this, the responsibility will be appreciated according to the national law according to the Directive on the electronic trade. For these activities, it limitativement founds a conditional mode of exemption of responsibility by enumerating the assumptions on which the people receiving benefits could be regarded as faulty. Moreover, it carries out a distinction between on the one hand, the actions of responsibility and, on the other hand, the actions in suspension^219(*). It also exempts the PSI to carry out controls a priori systematic^220(*).

The Directive on the electronic trade wants to encourage the codes of conduct^221(*), the settlement of the disputes^222(*) and the co-operation between the Member States^223(*). It should be noted however, that is with the latter to determine the sanctions which must be « effective, proportioned and dissuasive »^224(*).

With the difference of the DMCA, the Directive does not treat a question relating to the responsibility for the bonds hypertexts, repertories, search engines and other assistances to locate information available on line. However, it is envisaged in article 21 that these questions will be analyzed by the Commission before July 17, 2003, by the formulation of proposals. For the moment, only one report/ratio dating from November 21, 2003 was adopted on the application of the Directive on the electronic trade. This report/ratio is very general and does not relate solely to the aspects of the responsibility. It states that « the directive seems to have succeeded in reducing the recourse in front of the legal courts and thus uncertainties, in particular with regard to the responsibility for the intermediate people receiving benefits of services Internet »^225(*). By this report/ratio, the Commission announces its action plan for the good application of the Directive. Indeed, it wishes to improve information and sensitizing of the companies and the citizens, to identify the fields of future actions such as the plays on line, them « E-pharmacies » and the protection of the minors. This first evaluation remains rather summary and incomplete since the Directive on the electronic trade, for the moment, lack of experience practical. Indeed, it is inconceivable to date to proceed to any revision which would be in any event, premature. The European text has other considerable gaps which will be treated further in our study.

France, after a notable delay in the transposition of the Directive on the electronic trade, filed in a bill which raises some difficulties.

* ²⁰⁷ Directive on the trade electronic, above mentioned, note 176  ; See for information  : Alain STROWEL, Nicolas IDE, and Florence VERHOESTRAETE, «  The Directive of June 8, 2000 on the electronic trade  : a legal framework for the Internet  », (2001) n° 6000 Newspaper of the courts, Brussels, p.133, on line on  : Right and New technologies < http://www.droit-technologie.org > (site visited on March 13, 2004).

* ²⁰⁸ Definition given to Considering 17 of the Directive on the electronic trade (above mentioned, note 175) and article 2 (A) which return to the article 1st, paragraph 2 of the Directive n°98/34/EC relating to the lawful mechanism of transparency as modified by the Directive n°98/48/EC.

* ²⁰⁹ Id., art 22.

* ²¹⁰ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2818, p. 1591.

* ²¹¹ Directive on the trade electronic, above mentioned, note 176, art 1st (6).

* ²¹² Id., art 5 and suiv.

* ²¹³ Federal Act Establishing the General Conditions for Information and Communication Services- Information and Communication Services Act- (Information- und Kommunikationsdienste- Gesetz- IuKDG), on line on: < http://www.iid.de/rahmen/iukdgebt.html > (site visited on March 13, 2004)  : The Directive on the electronic trade (above mentioned, note 176) takes again certain elements of the German Law in particular on three points  : precise identification of certain functions of technical intermediaries on the network, the édiction of a safe principle of irresponsibility on certain precisely defined assumptions and finally, the reference with the rules of the common right if their responsibility would be committed  ; See Cyril ROJINSKY, loc. cit., note 15.

* ²¹⁴ DIGITAL Millenium Act Copyright, public Law n°105-304, 112 Stat. 2860 (October 28, 1998), (quoted hereafter «  DMCA  »), on line on: < http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html > (site visited on March 13, 2004)  ; See for information  : T. VERBIEST and E. WERY, Right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p. 214 and suiv.  ; Valerie SÉDALLIAN, the responsibility for the technical people receiving benefits on Internet in the digital millenium American copyright act and the European draft Directive on the electronic trade, January 1999, on line on  : < http://www.internet-juridique.net/chroniques/responsabilite.html > (site visited on March 13, 2004)  ; SANTIAGO CAVANILLAS MUGICA and A., electronic Trade  : the time of the certainty, Books of the CRID n°17, Brussels, Bruylant, 2000, p.33 and suiv.

* ²¹⁵ It should be specified that the field of application of the two texts is different. Indeed, the American Law is limited to the royalty whereas the European text applies to any type of activity.

* ²¹⁶ Directive on the trade electronic, above mentioned, note 176, art 12.

* ²¹⁷ Id., art 13.

* ²¹⁸ Id., art 14 and considering 46.

* ²¹⁹ Id., art 12 (3) and 13 (2).

* ²²⁰ Id., art 15 and considering 47.

* ²²¹ Id., art 16.

* ²²² Id., art 17 and 18.

* ²²³ Id., art 19.

* ²²⁴ Id., art 20.

* ²²⁵ COMMISSION IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market («  directive on the electronic trade  ») (hereafter quoted «First report/ratio on the application of the directive on the electronic trade»), November 21, 2003, COM (2003) 702 final, Commission of the European Communities, p. 22, on line on  : europa < http://europa.eu.int/eur-lex/fr/com/rpt/2003/com2003_0702fr01.pdf > (site visited on January 15, 2004).