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

2) The penal responsibility

In the penal plan, an individual can see his committed responsibility insofar as the proof of its punishable intention is reported. The rules on complicity can also apply since is accessory to a crime or an offense that « who knowingly, by assistance or assistance, in facilitated the preparation or consumption »^276(*).

The new Québécois provisions apply only for the civil liability. On the penal level, it is thus always the common right which applies. Nevertheless, certain authors launched the idea to amend the criminal Code in order to insert there a penal responsibility for these technical intermediaries^277(*). On the other hand, for the French right, new article 43-8 of the Law n° 2000-719 of August 1, 2000^278(*) founds a mode of responsibility as well on the civil level penal^279(*). The common right thus applies only in a derogatory way as for the civil liability. The same applies to the Project LEN^280(*) which envisages in article 43-9 as « the people designated in article 43-8 can see their penal responsibility committed only if, with full knowledge of the facts, they did not act with promptitude to put an end to the diffusion of information or an activity of which they could not be unaware of the illicit character ».

The creators of bonds hypertexts and search engines are subjected to the general criminal law, as for the civil liability^281(*). They can engage their responsibility, either as direct author of an infringement, or, more probably, like accomplice, on the base of article 121-7 of the French Penal code, to have provided with full knowledge of the facts a help to the commission of the infringement. The rules relating to the infringements of press can also apply.

* ²⁷⁶ New French Penal code, art 121-7 Al 1.

* ²⁷⁷ See the text of Francine AUMUELLER, «Haste propaganda law and Internet-based hastens», (Oct. 2000) 44 Crim. L.Q. 92-107: Is necessary it to amend the criminal Code to set up such a responsibility  ? and Jeff BRUNNER, «Canada' S uses off criminal and human rights legislation to control hastens propaganda», (1999) 26 Man. L.J. 299-317.

* ²⁷⁸ Law of August 1, 2000, above mentioned, note 17.

* ²⁷⁹ The European Directive exonerates as well of civil liability as penal  : See T. VERBIEST and E. WERY, Right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.220.

* ²⁸⁰ Project LEN, text modified by the Senate, June 26, 2003, on line on  : Site of the French French National Assembly < http://www.assemblee-nat.fr/12/projets/pl0991.asp > (site visited on March 13, 2004).

* ²⁸¹ See the article Cyril ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, loc. cit., note 274.