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

c) The absence of action

The last criterion of imputability of the responsibility is that of the inertia of the PSI which knows that information is illicit. It is about the case where it does not act promptly to withdraw information or to make the access to those impossible^317(*). Concept of « promptitude » can apply only to the supplier whom with the possibility of intervening. It implies that it is advisable to act without delay and « as soon as possible »^318(*). The supplier should not in no case to remain inactive. He has an obligation of reaction as soon as he is informed of the illicit character of information^319(*), not to engage his responsibility^320(*).

The new mode of responsibility « of reason » based on the trinomial one « to be able- to know- inertia » the PSI exonerate when the conditions above above mentioned, are met. It is not any more from now on automatic.

* ³¹⁷ Directive on the trade electronic, above mentioned, note 176, art 14  ; LCJTI, above mentioned, note 252, art 22 and Project LEN, above mentioned, note 17, art 43-8.

* ³¹⁸ Well-known concept in French right to the difference in this new concept of «  promptitude  »  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹⁹ 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. The supplier of lodging becomes responsible only if it did not carry out diligences necessary after being informed (for facts of denigrations on a forum of discussion: TGI Paris, ref., February 18, 2002, Com. Com. électr. 2002. Com. n°102; TGI Toulouse, ref., June 5, 2002, Com. Com. électr. 2002. Com. n°118; for an illicit site: TGI Paris, ord. ref., January 17, 2003, Com. Com. électr. 2003. Com. n°50).

* ³²⁰ The responsibility for the supplier of lodging cannot be committed since it A acts promptly by closing the site or by withdrawing litigious information  : Cubby v. CompuServe, above mentioned, note 303  ; Religious Technology Center v. Netcom Online Communications Services Inc. (above mentioned, note 303)  : Netcom was made responsible by its inaction which was equivalent to a substantial participation in the illegal distribution of the material  ; Jean-Marie the PEN C. limited liability company Ccmb Kilikopela, Tiscali, Sebastien C., above mentioned, note 302  : by withdrawing a site at the request of the third victim of the illicit contents, the supplier of lodging guards himself against any responsibility  ; SA Ciriel and Mr. F C. SA Free, above mentioned, note 203  : closing of a comprising site of the defamatory remarks on the initiative clean of the shelterer.