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

2) The supplier of access Internet

The FAI is that which places at the disposal of its customers average techniques giving access to them Internet network and various services, such as receiving and sending mail^334(*). This intermediary, just like the operators of telecommunication, does not know the contents of the documents since it does not have to play of active role in the transmission of the documents^335(*) ; if necessary, it exceeds its functions and consequently, will not be able to profit from the mode of exemption of responsibility^336(*). Like the precedents, it is subjected to an irresponsibility of principle, if it exerts its functions without taking an active share in the information storage^337(*).

In France, the FAI is subjected only to only one obligation which is that to inform and to propose to the subscribers software of filtering or control. This intermediary is thus subjected to the common right of the responsibility^338(*). There is thus here a clear contradiction between the Community legislation and the French right since such as it was already previously exposed the Directive on the electronic trade subjects the FAI to a principle of irresponsibility provided that he does not exceed his functions^339(*).

3) The activity known as of « caching »

They are a temporary form of storage copies sites and services the most asked or consulted on waiters relay installed by the FAI. This storage makes it possible to improve time of connection and to avoid the obstruction of the network^340(*). This activity is subjected to an irresponsibility under condition. The intermediary is not responsible if it meets the conditions envisaged by the law. For example, as soon as it intervenes in the contents or the diffusion of the document or, as soon as it promptly does not withdraw stored information or the access impossible to the latter does not make whereas it is informed indeed of its illiceity, the supplier of mask engages his responsibility because of its active share in the transmission of the document^341(*).

The criterion of knowledge reappears for this technical intermediary, but there still, it is difficult to know the necessary degree to consider that it knew and had thus the obligation to act to withdraw the stored document^342(*). Article 13 subparagraph 3 of the Directive on the electronic trade reserves for the States the possibility of providing that a jurisdiction or an administrative authority can impose to the person receiving benefits (« caching » and of simple transport^343(*)) of the obligations of control a priori bearing on the contents^344(*). An injunction could thus be addressed to him in order to put « a term with a violation or which it prevents a violation »^345(*).

4) The supplier of lodging

This technical intermediary is that which carries out « a durable service of storage of information which domiciliation on its waiter makes available and accessible to the people eager to consult them »^346(*). The trinomial one « to be able- to know- inertia » applies to this last. It is thus irresponsible under certain conditions. It is held responsible if it has in fact knowledge of documents with illicit contents, that it with the possibility of intervening and that it does not act promptly to avoid the disorder^347(*). It does not have, like the preceding intermediaries, to exceed its functions of shelterer if not it will not be able to profit from the exemption of responsibility^348(*). This person receiving benefits must thus close or make the access impossible to the litigious documents by preserving the rights of the thirds^349(*).

In France, this intermediary is not a priori responsible^350(*), since the Law of August 1, 2000 sets up one case of charge of responsibility. The shelterer is responsible only if « having been seized by a legal authority, it did not act promptly to prevent the access to these contents »^351(*). This system is also in contradiction with the Directive on the electronic trade.

* ³³⁴ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°4658, p.688.

* ³³⁵ They are also subjected to the principle of neutrality  ; See T. VERBIEST and E. WERY, right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.220 and V. FAUCHOUX, loc. cit., note 287.

* ³³⁶ Directive on the trade electronic, above mentioned, note 176, Considering 44  ; See too  : A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, 142.

* ³³⁷ Directive on the trade electronic, above mentioned, note 176, art 12 and LCJTI, above mentioned, note 252, art 36.

* ³³⁸ 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 and S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2818, p.1590.

* ³³⁹ Id.

* ³⁴⁰ V. SÉDALLIAN, the responsibility for the technical people receiving benefits on Internet in the digital millenium American copyright act and the European draft Directive on the electronic trade, loc. cit., note 214  ; Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.46  ; P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.28.

* ³⁴¹ Directive on the trade electronic, above mentioned, note 176, art 13  ; LCJTI, above mentioned, note 252, art 37 and Projet LEN, above mentioned, note 17, art 4  ; See also  : P. TRUDEL, Id., p.30.

* ³⁴² T.VERBIEST, Bill for confidence in the numerical economy  : analyze critical, loc. cit., note 236, 12  ; T. VERBIEST and E. WERY, right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.221.

* ³⁴³ Directive on the trade electronic, above mentioned, note 176, art 12 Al 3.

* ³⁴⁴ SANTIAGO CAVANILLAS, COp cit., note 214, p.47.

* ³⁴⁵ The same applies to the simple conveyer and the supplier of lodging in article 14 Al 3 of the Directive on the electronic trade (above mentioned, note 176).

* ³⁴⁶ Lacoste C. SA Multimania Production and A., above mentioned, note 159.

* ³⁴⁷ 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.

* ³⁴⁸ Directive on the electronic trade, art 14 Al 2  ; See too  : SANTIAGO CAVANILLAS, COp cit., note 214, p.44 and P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.20.

* ³⁴⁹ SANTIAGO CAVANILLAS, Id., p.46.

* ³⁵⁰ 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  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  : the provisions of the Law of August 1 2000 pose a principle of irresponsibility of the shelterers since they should not only submit with the injunctions of justice. They are held by no other type of vigilance.

* ³⁵¹ Law of August 1, 2000, above mentioned, note 17, art 43-8.