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

Section II : The conditional responsibility : a mode of consensus

The legislators European, French and Québécois tried to find a balance between an automatic responsibility and a total absence of responsibility. They then chose to tend towards the way of the reason, as professor ALIVE Michel recommends it^289(*) (§1). The PSI are thus subjected to a mode of exemption or limitation of responsibility (§2).

Paragraph 1 : A responsibility « of reason »

The PSI profit from a mode of responsibility for « reason »^290(*), because it proved to be illogical that they are held responsible for the presence of illicit contents circulating on the network, whereas they were not at the origin of the damage undergone by the victim. Indeed, it should not be forgotten that in theory, the first person in charge is the author of the illicit contents (A). It appears then interesting to analyze the exact content of the new mode of responsibility set up (B).

A) The first person in charge : the content provider

While making the PSI responsible without it not having an indeed criticizable behavior, the judges went against the civil law, even if they acted in a preoccupation with a repair of the victim. Indeed, in a logic of responsibility for fault in the civil plan, that which cannot act or which is in a situation where to abstain from is legitimate, cannot see its committed responsibility^291(*).

Consequently, it seems clear that the comparative responsability to the illicit contents circulating on Internet network necessarily falls on that which is in the beginning, that is to say the content provider^292(*). This last « is the person who places information at the disposal of others, by sending an electronic mail to one or more recipients, while contributing to a newsgroup, by publishing Web pages,... »^293(*). However, the fact that Internet is transborder and anonymous causes certain difficulties of setting concerned of the responsibility for these suppliers. Indeed, those prove often impossible to identify because of this anonymity^294(*). Therefore the current legislations, European and Québécois, stress the identification of the illicit authors of contents ; but there still, there can be other problems. In any case, in a preoccupation with a repair of the undergone damage and fault of being able to find the true author of the litigious message, a new system of responsibility was born. Indeed, the PSI will be able to be seen reproaching certain behaviors and thus engaging their responsibility^295(*).

B) Contents of the principle of responsibility

The first person in charge according to a quasi-universal consensus, which is that makes the decision to disseminate information on Internet (1). However, the PSI remains responsible in certain cases envisaged by the texts (2).

1) Service providers Internet a priori irresponsible

The PSI from now on are subjected to the principle of irresponsibility a priori^296(*) which takes for starting postulate, that they can be held responsible only under certain conditions^297(*). Consequently, they become responsible if they take share with the diffusion of information by exceeding their functions^298(*) or if they are informed of the illicit character of the contents diffused on Internet network, that they had the capacity to act and that they did not do anything to withdraw it or prevent his access^299(*). The responsibility for the actors of the network is thus committed on the base of trinomial « to be able- to know- inertia »^300(*). It is necessary that these three conditions are met so that the person receiving benefits, in particular the supplier of lodging, is held responsible^301(*). It seems logical thus to hold responsible that which with the technical possibility to intervene and which remains inactive by not taking measurements necessary and reasonable to cure the disorders^302(*).

The American courts anticipated this principle in particular by the business Cubby v. CompuServe^303(*) where the court judged that CompuServe was not able to know the diffused messages and thus did not engage its responsibility. In France, the judges also intervened by retaining the responsibility for the shelterers who held the capacity of « to go to check the contents of the site » and which could « to take measurements if necessary likely to put an end to the disorder which could have been caused with a third »^304(*).

An analogy with the common right of the responsibility can be raised here, since the supplier will be in fact responsible held, if it makes a fault characterized by the new texts^305(*). The latter thus did not set up a mode of responsibility sui generis but only one complement at the common right in order to take account of the particular characteristics of Internet^306(*). These last thus made it possible to release from the factors of charge of responsibility.

* ²⁸⁹ ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285.

* ²⁹⁰ Id.  : Expression taken of professor ALIVE M.

* ²⁹¹ Mr. CAHEN, loc. cit., note 185.

* ²⁹² Conseil IARD CENTERED and CENTERED the Council Life C. Mr Christophe Mr., Mr Christophe Sapet, Chairman of the board of the Infonie company, TGI Puteaux, 28/09/1999, on line on  : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/resum.htm#axa > (site visited on March 13, 2004).

* ²⁹³ Pierre-François DOCQUIR, Control of the contents on Internet and freedom of expression within the meaning of the European Convention of the humans right, May 2002, on line on  : Right and New technologies < http://www.droit-technologie.org > (site visited on March 13, 2004). The content provider covers several realities  : S. MARCELLIN and L. COSTES, COp cit., note 161, n°2797, p.1581  ; V. SÉDALLIAN, Right of the Internet  : regulation, responsibility, contracts, COp cit., note 107, p. 113.

* ²⁹⁴ 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.

* ²⁹⁵ Lionel BOCHURBERG, Internet and electronic trade  : Web site, contracts, responsibility, dispute, 2nd edition, Paris, DELMAS-DALLOZ, 2001, p. 234.

* ²⁹⁶ A. HAMON, COp cit., note 5, p. 102.

* ²⁹⁷ It should be noticed that the words employed are always the same ones  : «  the responsibility for the person receiving benefits... cannot be committed... in condition...  ». The authors in the work Trades electronic  : the time of certainty (Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.38), states that the European legislator devotes a principle of  «  conditioned irresponsibility  » or of «  moderate immunity  ».

* ²⁹⁸ European directive on the trade electronic, above mentioned, note 176, art 12 and 13 and LCJTI, above mentioned, note 252, art 36 and 37.

* ²⁹⁹ Id., art 14 and considering 46  ; Id., art 22 Al 2 and Project LEN, above mentioned, note 17, art 43-8.

* ³⁰⁰ Trinomial advanced by the European Commission in its communication on the contents illegal and prejudicial on Internet of October 16, 1996 (COM (96) 487)  ; defended by the report/ratio of the Council of State on Internet and the networks numerical (French documentation, 1998, p.185, on line on  : < http://archives.internet.gouv.fr/affichage.php?val=/francais//textesref/rapce98/accueil.htm >)  ; and begun again by many authors such as ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285  ; S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2810 and suiv., p.1586 and Mr. CAHEN, loc. cit., note 185.

* ³⁰¹ These conditions are necessary but not sufficient  : ALIVE Mr., Id., p. 2023 and Mr. CAHEN, Id.

* ³⁰² Judgments which did not retain the responsibility for the PSI because of their initiative to withdraw litigious information  : Jean-Marie the PEN C. limited liability company Ccmb Kilikopela, Tiscali, Sebastien C., TGI Paris, ord. ref., January 17, 2003, Com. Com. électr. May 2003. Com. n°50, p.31, note Luc GRYNBAUM  ; and SA Ciriel and Mr. F.C. SA Free, above mentioned, note 203, p.30  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  : «  response of reason based on the idea that «  only that is faulty which is able to intervene, knows that there are grounds for to intervene and does not do anything  ».

* ³⁰³ 776 F. Supp. 135 (SDNY 1991)  ; in another business Religious Technology Center v. Netcom Online Communication Services Inc. (907 F. Supp. 1361 (ND Cal.1995)), the judge retained the responsibility for the person receiving benefits who remained inactive following the complaint of a third which asked for the withdrawal of information  : to see ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285, 2024.

* ³⁰⁴ V. Lacambre E.C. Lefèbure-Hallyday, above mentioned, note 157 and ALIVE Mr., Id.  : «  the ordinance illustrates perfectly and fortunately the triptych «  to be able- to know- inertia  ».

* ³⁰⁵ See for more information  : L. GRYNBAUM, loc. cit., note 171, 15.

* ³⁰⁶ The ALIVE professor states in his article entitled «  The responsibility for the intermediaries of the Internet  » (loc. cit., note 285, 2024) that the tryptique one «  to be able- to know- inertia  » is only one guide of reason to be followed for the implementation of the common right  ; See too  : Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.38.