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

B) The mode of the responsibility for the editors or directors for publication : a responsibility in « cascade »

In the absence of specific provision, the judges applied to the PSI the responsibility for the editors or the directors of publication. Currently, the situation is quite different. Indeed, Project LEN states clearly that the leading responsibility under producers for services for audio-visual communication is excluded for the PSI^282(*). As regards violation of the press laws, the Law of July 29, 1881 defined a mode of responsibility in cascade^283(*). This system of responsibility was transposed to the sector for audio-visual by the Law n°85-1317 from December 13, 1985 relating to the audio-visual communication^284(*). The judges thus applied it to the sites telematics, then with the whole of the services of communication on line. Indeed, the technical intermediary was considered in certain cases an editor because of his will to publish contents on its waiter. But of many authors disputed this assimilation^285(*). The PSI cannot thus be regarded as « producers » within the meaning of the Law on the audio-visual communication^286(*). Moreover, articles 12 to 15 of the Directive on the electronic trade do not aim the activities of production and edition on the network. They thus remain subjected to the common right of the responsibility. However, it should not be forgotten that the responsibility for the PSI remains subsidiary, since the first person in charge is before all the author of the illicit contents. Gradually, the new legislations set up a kind of responsibility in cascade specific to Internet^287(*) since it would be too difficult to establish the functions of each person receiving benefits. Indeed, their « roles are not very definite, volatile and the bonds existing between the sometimes transitory actors and little transparencies »^288(*).

The process of installation of the new legislations relating in particular to the mode of responsibility for the PSI, thus knew many bounces and a long training. Before all new provisions coming to clear up it, these PSI were systematically regarded as the persons in charge for the presence of contents considered as illicit or offensive for the victim. Moreover, the judges their imposed more or less rigorous obligations which created a climate of insecurity for the latter. The contradiction of certain court orders did not arrange the situation. Thus the legislator intervened to try to clarify the responsibilities for these PSI by founding a mode of consensus based on a conditional responsibility.

* ²⁸² Project LEN, above mentioned, note 17, art 43-10  ; for more information  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ²⁸³ Law of July 29, 1881 on the freedom of the press, above mentioned, note 54, art 42  ; for more information  : Carole GUERNALEC, contents illicit on Internet  : prevention, responsibility, repression, Paris, January 2002, on line on  : < http://www.cpu.fr/dossier/webuniversites/internet_responsabilite_exposeV2.pdf > (site visited on March 13, 2004).

* ²⁸⁴ Law n°85-1317 of December 13, 1985 relating to the audio-visual communication, art 93-2 and 93-3, on line on  : Legifrance < http://www.legifrance.gouv.fr/ > (site visited on March 13, 2004).

* ²⁸⁵ See the following authors  : P. TRUDEL and A., Right of the cyberspace, COp cit., note 115, p. 5-3 to 5-6   ; ALIVE Michel, «  The responsibility for the intermediaries of the Internet  », J.C.P. ED. G.1999. I. 180  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  ; SANTIAGO CAVANILLAS, COp cit., note 214, p.37.

* ²⁸⁶ The supplier of lodging of personal pages cannot be regarded as a director of the publication  : TGI Puteaux, September 28, 1999. See also the Code of the communication (Paris, Dalloz, 2001, p.263).

* ²⁸⁷ Vincent FANCHOUX, French FAI vis-a-vis the illicit contents out of France, August 2001, on line on  : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique010828.shtml > (site visited on March 13, 2004).

* ²⁸⁸ SANTIAGO CAVANILLAS, COp cit., note 214, p.37.