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

Paragraph 2 : Combination of the new right with the common right

Specific laws were worked out to answer the characteristics of Internet network. The common right according to any logic, should not apply any more in certain situations in connection with new technologies. However, it proves that these specific legislations combine rather well in general with the common right of the civil and penal liability (A). Sometimes, the judges seem to prefer to apply the mode of the editors or directors of publication to the PSI (B).

A) Common right of the civil and penal liability : always applicable

The common right remains applicable on the network even in the presence of a special text since it cannot envisage all the possible case of application. This common right of the responsibility thus will make it possible to fill the gaps of the new laws, as well for the civil liability (1) as for the penal responsibility (2).

1) The civil liability

France and Canada are of different legal design. Indeed, one is a common lawyer and the other is mainly of common law. Quebec on the other hand, has a clean characteristic since it is about a Canadian province of mixed duty which combines these two designs. The civil liability comes under the field of the property and the civil laws. It is thus the right of each province which regulates these matters^261(*). Consequently, our study will be limited to the analysis of the Québécois and French legislation.

The people receiving benefits, before the installation of a specific mode and in a preoccupation with a repair of the undergone damage, were subjected to the liability for fault^262(*) or for the things^263(*). Sometimes, the courts retained the responsibility for the PSI on the base of the theory of the risk. Indeed, the latter tie profit of their activity, were to undergo the consequences of them and to thus ensure the incurred risk^264(*).

The new articles (art 43-7 to 43-10) inserted in the Law of September 30, 1986 relating to the freedom of communication^265(*) do not allow any more, in theory, the application of the common right^266(*). Thus it will apply whenever a civil wrong is made up such as for example, the direct participation in the creation of an illicit site or its opening. Moreover, the provisions of the LCJTI^267(*) come to supplement the general principles of responsibility founded by article 1457 for the Civil code of Quebec.

The special modes founded by the various legislative texts seem to set up a kind of responsibility for heavy fault which would be more rigorous than the common right based on articles 1383 for the French Civil code^268(*) and 1474 for the Civil code for Quebec^269(*). For example, it « Directive constitutes not only one responsibility for fault, but still a responsibility for fault characterized for the person receiving benefits who confines heavy fault »^270(*). Indeed, the heavy fault is made conspicuous by the fact that it « indicate an unconcern, an imprudence or a coarse negligence »^271(*). It is thus the fault of a particular gravity which would not make a reasonable person or one « good father of family »^272(*). The French Law of August 1, 2000 also devotes a responsibility for fault since « actually it is well a personal fact which is in question, precisely an abstention »^273(*).

Certains PSI remains subjected to the common right, since the new right did not plan anything for the latter, except the LCJTI^274(*). Indeed, the responsibility for the suppliers of services of reference concerns the French common right, for the moment. For example, by creating a bond, its author is likely to cause a damage with others because of the illicit contents of the site towards which it refers and thus, engages its civil liability on the base for article 1382 of the French Civil code. Moreover, it will be responsible if by creating a bond or by maintaining it, it missed with its duty diligence or of prudence under the visa of article 1383 of the same Code^275(*). These rules also apply to the suppliers of search engines.

It is undeniable that the responsibilities, civil and penal, have a base different with regard to repair from the victim. Indeed, whereas the civil liability is the legal obligation which falls on a person to repair the damage caused with others, the penal responsibility aims at sanctioning a person who commits an offense.

* ²⁶¹ Michel RACICOT and A., Study of the comparative responsability to the contents circulating on Internet, 1997-03-12, Canada Industry, on line on  : < http://strategis.ic.gc.ca > (site visited on March 13, 2004).

* ²⁶² D.C.Q., art 1457 and C.civ., art 1382 (above mentioned, note 166) and 1383 of the same code (above mentioned, note 167). See S. Perathoner, co. Pmbe, co. Midday Music, Trade union of the Data-processing Producers of Sound records, co. of the Authors and Type-setters and Editors of Musics C.J. Paumier, co. Free and others, TGI Paris, 3rd CH., 1st sect., May 23, 2001, Com. Com. électr. 2001. Com. n°112, p. 21.

* ²⁶³ D.C.Q., art 1465 and C.civ., 1384 subparagraph 1  : «  One is responsible not only damage which one causes by his characteristic made, but still of that which is caused by the fact of the people which one must answer, or of the things that one has under his guard  ».

* ²⁶⁴ Lacoste C. SA Multimania Production and A., above mentioned, note 159  ; CA Paris (14th CH.), February 10, 1999, J.C.P., E, 1999, p.953, n°21, obs. Mr. LIVING and C. the STANC  ; Mr. SANTIAGO CAVANILLAS, COp cit., note 214, p.44  : the Court of Appeal of Paris of February 10, 1999 worked out «  a reasoning inspired by the theory of the risks  ».

* ²⁶⁵ Law of August 1, 2000, above mentioned, note 17.

* ²⁶⁶ See the note of the authors Gerard HAAS and Olivier TISSOT, loc. cit., note 200, 24-25  : the responsibility for common right does not apply any more to the litigations born between the thirds and the suppliers of lodging because of the contents of a lodged site.

* ²⁶⁷ LCJTI, above mentioned, note 252.

* ²⁶⁸ C. civ., above mentioned, note 37.

* ²⁶⁹ D.C.Q, above mentioned, note 37.

* ²⁷⁰ L. GRYNBAUM, loc. cit., note 171, 15.

* ²⁷¹ D.C.Q, art 1474.

* ²⁷² Concept used in French right which joined the concept of «  nobody reasonably careful and diligent  ». See Josée PAYETTE and A., «  Extracontractuelle civil liability  », in Collection of right 2002-2003, School Bar of Quebec, vol.4, Responsibility, Cowansville, Editions Yvon Blais, 2002, p.1, on page 24-23.

* ²⁷³ 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, 15.

* ²⁷⁴ See LCJTI, above mentioned, note 252, art 22 Al 3.

* ²⁷⁵ For more information  : See the article of Cyril ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, December 17, 2002, on line on  : Juriscom.net < http://www.juriscom.net > (site visited on March 13, 2004).