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

2) Various factors of charge of responsibility

The principle of irresponsibility founded a priori by the various legislations is implemented so certain conditions are joined together. On the faith of trinomial « to be able- to know- inertia », the PSI will be held responsible if it is established that it had a control on information (to be able) (A), that he was informed of the illicit character of this information (to know) (b) and finally, that there remained inactive (inertia) (c). An analogy can be made with the French former jurisprudence which had released from the obligations of action, vigilance and information. However, it is interesting to note that the current French law on the freedom of communication poses one case of charge of responsibility for the supplier for lodging, that is to say the refusal of obtempérer promptly to the legal authorities when they were seized to prevent the access to the litigious contents^307(*).

a) The control of information

The criterion of the control of information is an element determining to characterize the intensity of the responsibility to be retained against the PSI. It is about pre-necessary with the charge of the latter^308(*). Thus the degree of control that the various actors will exert, will influence it. Indeed the fact of exerting a control on information will make it possible to more easily engage the responsibility for the PSI. On the other hand, that which does not have any control on the information disseminated on the network will have a responsibility less rigorously.

It is necessary to distinguish two cases from possible controls of information. Initially, there is the control of the contents called also leading freedom and in the second place, the physical control of information^309(*). Leading freedom results in the discrétionnaire choice carried out by the person receiving benefits to publish such or such information. In this precise case, the supplier incurs an important responsibility since it controls the contents of his waiter^310(*). On the other hand, it goes from there differently when it exerts an effective physical control on information. Indeed, in this case, the supplier with the possibility of withdrawing information or of preventing of them the access in order to cease very turbid on the network. It does not have the same capacity as the precedent since it exerts only one control a posteriori. Its responsibility will be thus lighter because it does not control the publication of information.

Consequently, this criterion of the control of information is very important to charge any responsibility to a PSI. But so that it can exert a control, it is necessary that it is informed of transmitted information.

b) The knowledge of information

This criterion is that which will make it possible to charge the responsibility for the PSI because of presence of illicit contents to the network. The various legislations mention that the person receiving benefits sees his civil liability committed in two cases. The first case is if it is informed indeed of illicit information, and the second, « facts or circumstances according to which the activity or illicit information is apparent »^311(*). This criterion will make it possible to release the PSI of any responsibility if it is established that it was not informed in fact any of transmitted illicit information. Terms « manpower » and « in fact » must « to be included/understood like returning to a knowledge of the established facts and certain, verifiable by its own means, in opposition to a supposed knowledge, of which the judge makes sometimes use »^312(*). The illiceity must thus be obvious and seem proclamation even with a not-professional of the right^313(*).

The PSI is responsible also penally, if it abstained from acting « with full knowledge of the facts » according to French Project LEN. The legislator places himself thus on the ground of the obviousness since it aims at the fact that the shelterer could not be unaware of the illicit character of information^314(*). This term, « with full knowledge of the facts », joined the first used for the civil liability. It is surprising that it is made a use of similar term but nevertheless different in the same law.

It as should be noted as because of the absence of obligation of monitoring activates, the omission to supervise cannot constitute a fault and consequently, the PSI cannot be supposed to know the content of the conveyed documents^315(*). Indeed, it is impossible for these intermediaries to know and check the contents of all the messages sent or stored. On the other hand, the situation is quite different when they act as editors on the network. In this case, they are supposed to have a knowledge of information that they decide to publish on Internet network^316(*).

Consequently, as soon as they are informed of the illicit character of conveyed information, they are held responsible. In other words, it is enough that they were informed of the illiceity of the message so that their responsibility is committed. However, it proves to be difficult to determine the moment when the person receiving benefits is informed indeed of the illicit character of information and his necessary degree to generate this responsibility. These questions will be treated further in the development.

To summarize, the PSI urges its responsibility to have transmitted litigious contents if the proof is reported that it was informed of the illicit character, that it had the capacity to put an end to the disorder and finally, that it did not do anything to cease the disorder.

* ³⁰⁷ 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, 16.

* ³⁰⁸ P. TRUDEL, the responsibility on Internet, loc. cit., note 255.

* ³⁰⁹ P. TRUDEL, «  Responsibilities in the cyberspace  », in T. FUENTES-CAMACHO (to dir.), COp cit., note 36, p. 235, on page 247 and suiv.

* ³¹⁰ Stratton Oakmont Inc. C. Prodigy Services Co., [1995] New York (Quicklaw) Index n°31063/94 (Sup. Ct.): it is about the first judgment which showed the exercise from a certain leading control by a supplier from services, and to thus recognize a role of editor to him to found his responsibility.

* ³¹¹ Directive on the trade electronic, above mentioned, note 176, art 14.

* ³¹² N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹³ There is no presumption of knowledge of the contents of the sites lodged by the supplier. He can to him be reproached only the fact of being unaware of that the domain name and the address of the litigious site were exclusively made up of the servile reproduction of an original mark  : See decision of the TGI Paris, March 24, 2000 relating to the application of the Law of August 1, 2000 on the freedom of communication in the Code of the communication (above mentioned, note 286). The obligations put at the load of the shelterer must remain, as the judgment of the TGI of Nanterre of December 8, 1999 underlined it (above mentioned, note 159), about «  reasonable measurements  «that one can require of one»  advised professional  «, and it is completely normal that a technical person receiving benefits appreciates the illicit character of contents»  taking into consideration its own competence  «.

* ³¹⁴ N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹⁵ P. TRUDEL, «the responsibility for the actors electronic commercial  », in Vincent GAUTRAIS (to dir.), Right of the electronic trade, Montreal, the THEMIS editions, 2002, p. 607, on page 631  ; See the note of Luc GRYNBAUM, «  The United States  : immunity for eBay, organizer of bidding, having accommodated defamatory remarks  », Com. Com. électr. June 2003, Com. n°61  : the company eBay is seen granting an immunity of responsibility for the remarks made on the forum for discussion that it created because it is satisfied to convey information.

* ³¹⁶R.C. Jorgensen, [1995] 4 R.C.S. 55: The Court points out the distinction between articles 163 (1) and (2) of the criminal Code i.e. between the producer or the distributer and the salesman. Indeed, one can suppose that the producer and the distributer know the contents of the material which they create or distribute to the difference of the salesman who cannot know the contents of all that it sells  ; P. TRUDEL and others, Right of the cyberspace, COp cit., note 115, p. 5-24; P. TRUDEL, «responsibilities in the cyberspace», loc. cit., note 309, p. 235, on page 253.