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

c) A bill transposing the Directive on the electronic trade (for the confidence of the numerical economy) : an important polemic

The transposition of the Directive on the electronic trade proves to be a tiresome and long-term work. Indeed, this project begin with a first Project entitled Loi on the company from the information^226(*), which finally was given up and replaced by Project LEN^227(*) presented by the Government at the Council of Ministers on January 15, 2003. This project came to fill the gaps of the precedent and constitutes the first text of the Plan for a numerical Republic in the Company of information (Plan RE/SO 2007)^228(*) presented by the Jean-Pierre Raffarin Prime Minister on November 12, 2002. It aims at supporting the development of information technologies by simplifying the rules in force on Internet, by restoring the confidence of the users in particular, and by clarifying the responsibilities for the various actors of the company of information. In his speech, the Prime Minister declares that three texts will come to clarify the rules of the game of the company of information by the end of the first half of 2003. This plan RE/SO 2007 right now gave place to the presentation of texts. Indeed, the first text is thus Project LEN^229(*) adopted in the Council of Ministers on January 15 2003 which should make its entry in the French legal system soon. The second text was presented by the minister delegated to Industry, Nicole Fontaine, July 31, 2003 front the Council of Ministers. It is about the Bill on the electronic communications and the services of audio-visual communication^230(*).

Project LEN^231(*) proposes many changes, in particular on the right of the consumers or of publicity by courriel, it also governs the liberalization of the software of cryptography, and amends the Law of 1986 on the freedom of communication^232(*). A question more particularly worries the various actors of the network, it acts of that concerning their responsibility.

Indeed, the polemic on this point is started again. Many associations denounce this text and judge it liberticide at the point to make new proposals^233(*). What can envisage this Project LEN well to cause as much interest ? Article 43-8 states that the people who lodg information on their waiters « even on a purely free basis », can see their committed civil liability « if, as of the moment when they had the effective knowledge of their illicit nature, or facts and circumstances highlighting this illicit character, they did not act with promptitude to withdraw these data or to make the access to those impossible ». This provision results directly from the Directive on the electronic trade^234(*), and the same applies to the penal responsibility. Indeed, the PSI will not see their committed penal responsibility « that if, with full knowledge of the facts, they did not act promptly to put an end to the diffusion of information or an activity of which they could not be unaware of the illicit character »^235(*).

These two provisions thus set up a new device of setting concerned of responsibility which can, indeed, to cause some nuisances for the various actors of Internet network^236(*). Indeed, this Project LEN implies that a simple presumption of illiceity will allow a shelterer on request for a third, to withdraw information or to make its access impossible. In spite of the presence of a guard insane in the event of abuse^237(*), the shelterers fear to have to replace the judges to decide if such or such contents are illicit or not^238(*). This difficulty will be developed further in our study. For the moment, we can name like first brief reply, the remarks of Pascal COHET who declares :

« It is however enough to take the example of the site I-boycotts-Danone. The shelterer had disconnected the site after the reaction from Danone. But when the judge intervened, later, it estimated that the only problem arising from the site was the diversion of logo. In other words : it is enough to let the judge do his work correctly. The intermediary by not having competences. It can make only brutal decisions »^239(*).

Project LEN, of many time amended, placed at beginning Internet under the authority of the Higher Council of Audio-visual (SCA) and stated that it was a subset of the audio-visual communication^240(*). However, the last version of Project LEN, as presented in front of the Senate in second reading, decides that only the radio and television would return in the sphere of competence of the SCA. This reversal falls under the idea of the deputy Jean DIONIS OF the STAY, which considers that « it is impossible to make it possible the SCA to control the contents and the counterfeit on the Internet. The only acceptable regulator must be the judge, seized by the Net surfers »^241(*). It thus confirms the principle according to which the technical intermediaries are not subjected to the general obligation of monitoring of the contents^242(*).

This bill thus knew difficult beginnings which continue still today. The debates do not cease and the professionals of Internet network are afraid to set up in « judge contents ». For this reason they continue to exert lobbying near the legislator in order to obtain a better safety for their activities. As a whole, the text falls under the prospects for the Directive on the electronic trade, even if many associations strongly denounce it. Indeed, concerns of the PSI vis-a-vis this text can seem justified. It is what we will try to expose throughout our study. The French legislation knew important bounces as well as the legislations Canadian and Québécois which also worked out a regulation for Internet.

* ²²⁶ Bill N° 3143 on the company of information (LSI), recorded with the Presidency of the French National Assembly on June 14, 2001, on line on  : Site of the French National Assembly < http://www.assemblee-nat.fr/projets/pl3143.asp > (site visited on March 13, 2004).

* ²²⁷ Project LEN (above mentioned, note 17) was modified in first reading by the Senate, June 26, 2003. It was then sent in second reading to the French National Assembly where it was adopted on January 8, 2004 (Bill n°235). It, thereafter, was returned in second reading in front of the Senate which will discuss it in equal Joint Committee on April 27, 2004, on line on  : Site of the French French National Assembly < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp > (site visited on March 13, 2004).

* ²²⁸ J-P. RAFFARIN, COp cit., note 1  ; GOVERNMENT, Plane RE/SO 2007, on line on  : The action of the State for the development of the company of information < http://www.internet.gouv.fr/rubrique.php3?id_rubrique=61 > (site visited on March 13, 2004).

* ²²⁹ Project LEN, above mentioned, note 17.

* ²³⁰ Bill on the electronic communications and the services of audio-visual communication, on line on  : The action of the State for the development of the company of information < http://www.internet.gouv.fr/article.php3?id_article=968 > (site visited on March 13, 2004).

* ²³¹ Project LEN, above mentioned, note 17.

* ²³² The new bill repeals chapter VI of the Law of September 30, 1986 relating to the freedom of communication (above mentioned, note 17). It is about the treating chapter of the responsibility for the technical people receiving benefits.

* ²³³ See the sites of associations IRIS, the Odebi League, Forum Internet and the ADIJ.

* ²³⁴ Directive on the trade electronic, above mentioned, note 176.

* ²³⁵ Project LEN, above mentioned, note 17, art 43-9.

* ²³⁶ See the article criticizes of Thibault VERBIEST, «  Bill for confidence in the numerical economy  : analyze critical  », Com. Com. électr. February 2003. Com. n°4, 9  ; Fabien LESORT and Laurent SZUSKIN, Comment of the bill on the Numerical Economy, January 29, 2003, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=714 > > (site visited on March 13, 2004).

* ²³⁷ Project LEN, above mentioned, note 17, art 43-9-1.

* ²³⁸ See article of Estelle DUMONT, Responsibility for the shelterers  : the polemic is revived, January 17, 2003, on line on  : < http://www.zdnet.fr/actualites/internet/0,39020774,2128916,00.htm > (site visited le13 March 2004).

* ²³⁹ Arnaud DEVILLARD, world Internet chahute the law on the numerical economy, February 19, 2003, on line on  : < http://www.01net.com/article/201958.html > (site visited on March 13, 2004).

* ²⁴⁰ Project LEN, above mentioned, note 17, art 1st III.

* ²⁴¹ Estelle DUMONT, Supervision of the SCA on Internet  : cultural lobbies stronger than Nicole Fountain, March 6, 2003, on line on  : < http://www.zdnet.fr/actualites/internet/0,39020774,2131532,00.htm > (site visited on March 13, 2004).

* ²⁴² Project LEN, above mentioned, note 17, art 43-11  ; See the Guillaume and Al, the HEARTH OF COSTIL, Synthesis of the round Table  : «  Project LEN  : advanced and uncertainties  », June 25, 2003, on line on  : < http://www.adij.asso.fr/V3/fr/len.htm > (site visited on March 13, 2004)  : The round Table had implied that the Senate would confirm the position of the French National Assembly on the important exemption brought to the principle of the European Directive according to which the technical people receiving benefits could not see themselves imposing a general obligation of monitoring  : «  However, the people mentioned to the 2 implement the means in conformity with the state of the art to prevent the data dissemination constitutive of the infringements aimed to the fifth and eighth subparagraphs of article 24 of the law of July 29, 1881 on the freedom of the press and to article 227-23 of the penal code  ». However, the version of Project LEN such as adoptee by the Senate in first reading, confirms well on the other hand the suppression of this exemption. However, it would seem that the French National Assembly wants this exemption absolutely since she reintegrated it in the version adopted in second reading and presented second once in front of the Senate.