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

Paragraph 2 : Exemptions or limitations of responsibility

The exemptions or limitations of responsibility released to limit the illicit contents on Internet network were given according to various activities' of the PSI (A). The latter will be responsible as soon as they are informed of illicit facts on their waiters, without to have a general obligation of monitoring (B).

A) The absence of general obligation of monitoring

The PSI are not subjected to a general obligation of monitoring of information nor to that « to actively seek facts or circumstances revealing of the illicit activities »^321(*). This obligation marks a rupture with the French jurisprudence which went in the opposite direction since it imposed « a true obligation of monitoring and preventive censure to the load of the people receiving benefits »^322(*). This article was set up to limit the responsibility for the people receiving benefits who would be tried to exert a preliminary control as for the admissibility of contents and thus to attack the freedom of expression^323(*).

According to the report/ratio of Mrs TABAROT of February 11, 2003 on Project LEN, this provision poses « a principle of nongeneral responsibility and a priori of the technical intermediaries because of the contents which they lodg or diffuse ». In other words, they are not responsible if they actively do not supervise the contents which they store or diffuse^324(*). On the other hand, they are free to do it. This exemption ceases since they decide to start to play an active part in the transmission or the diffusion of documents, in particular when they decide for example to interpose between the police force and the documents^325(*).

There is not thus general obligation of monitoring for the PSI what is logical because of the exorbitant volume of information conveyed on the network. Nevertheless, they are responsible, in certain precise cases, and according to the activity which they exert.

B) Determination of the responsibilities according to various activities'

The PSI are very numerous and exert fuzzy and vague functions^326(*). Indeed, the determination of their respective roles is a true problem. That is explained by the fact why they tend to qualify themselves to escape their responsibility. One thus should not be confined with the qualification given by the latter, but rather be interested in the activity which they really carry on. Another difficulty is that the majority of the professionals of Internet cumulate the technical roles under various denominations^327(*). This is why the courts deal with certain obstacles as for the separation of the multiple functions. This confusion can be sometimes found in the texts and the court orders. Nevertheless, the legal texts succeeded in releasing from the activities such as simple transport (1), the access to the network (2), the forms of storage or the activity known as of « caching » (3), lodging (4) and finally, services of reference (5).

1) Simple transport

The activity of simple transport is subjected to a total absence of responsibility^328(*). However, these people receiving benefits must respect the principle of the obligation of neutrality^329(*), since it is impossible for them to know the contents of transmitted information. They cannot in no case to intervene in the transmission of the conveyed messages^330(*). They have a passive role and must keep it^331(*). If they do not do it, they engage their responsibility because of an extension of their activity. Consequently, they should not be at the origin of the transmission, nor to intervene in its destination and its contents and finally, the storage period of information should not exceed time reasonably necessary to the transmission^332(*). In contrary case, they engage their responsibility since they will not be any more simple operators of transmission. The criterion of knowledge does not apply for these people receiving benefits because they have, in theory, no control on transmitted information^333(*).

* ³²¹ LCJTI, above mentioned, note 252, art 27; Project LEN, above mentioned, note 17, art 43-11 and Directive on the trade electronic, above mentioned, note 176, art 15  : this text must be also read with considering 47 which states that this absence of obligation of general monitoring does not prevent that the States set up obligation specific of monitoring and it considering 48 which makes it possible to impose an obligation of monitoring on the load of the service providers if it is defined by the law.

* ³²² Mr. CAHEN, loc. cit., note 185.

* ³²³ A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, 142  : It is by concern of safeguarding the freedom of expression and of avoiding the preliminary censure.

* ³²⁴ See the explanations notes 242  : the French National Assembly imposes a certain monitoring on behalf of the PSI. This provision it will be or not removed by the Senate in second reading  ?

* ³²⁵ P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.19.

* ³²⁶ Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.37.

* ³²⁷ The companies can call upon a single person receiving benefits called the ASP (translated «  supply of lodged applications  ») whose activity consists in proposing services applicatifs on line in rental mode  : Janice DERVAUX and Thibault VERBIEST, the ASP develop  : review of the obligations of the person receiving benefits, March 2003, on line on  : Right and New technologies < http://www.droit-technologie.org/1_2_1.asp?actu_id=723 > (site visited on March 13, 2004).

* ³²⁸ Directive on the trade electronic, above mentioned, note 176, art 12 (1) and LCJTI, above mentioned, note 252, art 36 Al 1.

* ³²⁹ This principle of neutrality forces the operators of telecommunication to transpose any message without discrimination  : art. L.32.1 of the Code of the stations and telecommunications and art 31 and 36 of the Law on telecommunications (L.C. 1993, c.38)  ; Chastain C. British Columbia Hydro & Power Authority, [1973] 2 W.W.R. 481  : they have the obligation to transport any message without discrimination as for the contents nor as for the person who dispatches it.

* ³³⁰ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2817 and S., p.1590.

* ³³¹ These PSI have an obligation of abstention: A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, p.143.

* ³³² Directive on the trade electronic, above mentioned, note 176, art 12 and LCJTI, above mentioned, note 252, art 36 Al 2  ; See for more information  : P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.27.

* ³³³ Id.  ; SANTIAGO CAVANILLAS, COp cit., note 214, p.39.