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

Paragraph 2 : Limits of the new legislative systems

The provisions installation thus present some limit which are explained initially by important gaps (A) then in the second place, by a complete lack of precision and clearness (B).

A) Important legislative gaps

Serious gaps are thus present in the new legislations. Indeed, some of them do not have procedures of withdrawal and notification in the event of illicit contents circulating on the network (1). This failure can prove to be a true problem. But especially, it should be stressed that certain protagonists of the network do not have a very clear statute what can reduce the confidence of the latter and Net surfers in the use of Internet network (2).

1) The absence of procedure of withdrawal and notification

The authorities tried to develop complete laws, but especially being able to apply efficiently to Internet. But it seems that these legislations do not comprise procedure of withdrawal and notification. However, these procedures are necessary for the good course of the withdrawals or blockings of litigious information, even sometimes even of restoration of Web pages. Without these last, the PSI can do what good seems to them in a discrétionnaire way and the Net surfers find themselves without any recourse to denounce or take advantage of their rights.

Europe is not yet leaning on these procedures, even if :

« Article 14 (1) (b) constitutes the base of the development by the interested parts of procedures of notification and withdrawal concerning of information illicit and prejudicial. (...) At the time when the directive was adopted, it had been decided that this one would not regulate the procedures of notification and withdrawal. Article 16 and considering it 40 encourage rather expressly the car regulation in this field »^399(*).

Moreover, the Directive on the electronic trade^400(*) states in its article 21-2 that the European Commission will have to submit to the European Parliament, the Council and the Economic and Social Committee a report/ratio before January 17, 2003 on the need in particular for presenting proposals relative to « procedures of notification and withdrawal (note and take down) and the charge of the responsibility after the withdrawal for the contents ». However, for the moment, it would seem that the Commission is late in the development of this report/ratio since nothing was given for the moment, on this point. However, the Directive took as a starting point the the American legislation, the DMCA^401(*) which sets up procedures of « note and take down »^402(*). These last determine the formal requirements to which the notifications made by the various plaintiffs (third-victim must answer : author or having right) and methods of the withdrawals of the contents to be respected by the intermediary. They can give place to sanctions in the event of abuse (punitive rammings) and thus allow a better legal safety^403(*).

The French Law of August 1, 2000^404(*) at all does not refer to this kind of procedure^405(*). The same applies to the LCJTI^406(*). However, of many authors, such professor Pierre TRUDEL, consider that it is necessary to refer to the American law and thus to use the procedures which it sets up^407(*). Soon, France will obtain a new law following the adoption of the Project LEN^408(*) which does not forget to insert the procedures of notification. Indeed, the French legislator preferred to set up one « optional procedure of notification intended to carry the existence of certain litigious facts to knowledge » of the PSI^409(*). It should be specified that this kind of procedure makes it possible to protect these people receiving benefits against the possible disputes made against the potentials withdrawals or blockings.

Consequently, it is obvious that the new legislations comprise some important gaps. The second is also surprising, since certain protagonists of Internet seem to be forgotten during the drafting of the new laws.

* ³⁹⁹ COMMISSION IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of the directive on the trade electronic, above mentioned, note 225, p. 16.

* ⁴⁰⁰ Directive on the trade electronic, above mentioned, note 176.

* ⁴⁰¹ DMCA, above mentioned, note 214.

* ⁴⁰² It is a question of notifying with the shelterer the litigious contents. It carries out the withdrawal then. It transmits the notification to lodged which can address a against-notification to the shelterer in order to justify his position and to require the cancellation of measurements taken in its connection. If it is diligent and conforms to the notifications, its responsibility cannot be committed. Moreover, it does not have to appreciate the request of the third nor to qualify the contents in question  : See F. LESORT and L. SZUSKIN, loc. cit., note 236  ; and for more information the article of T. VERBIEST and E. WERY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 168.

* ⁴⁰³One «  absence of precise provisions, as for the degrees of necessary knowledge in the chief of the intermediaries, as for information which the notification of a plaintiff and as for the response times must contain left to the various speakers, opens the way with many possibilities of disputes in the practices  »  : A. STROWEL, NR. IDE and F. VERHOESTRAETE, loc. cit. note 207, 144.

* ⁴⁰⁴ Law of August 1, 2000, above mentioned, note 17.

* ⁴⁰⁵ In practice, we could see that the suppliers often proceeded by prudence to the withdrawal or the suppression on simple setting in residence of a third.

* ⁴⁰⁶ LCJTI, above mentioned, note 252.

* ⁴⁰⁷ See the article of P. TRUDEL, «  The responsibility for the actors electronic commercial  », COp cit., note 315, p. 607.

* ⁴⁰⁸ Project of LEN, above mentioned, note 227.

* ⁴⁰⁹ Id., art 2 ((a)).