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

2) Uncertainty for certain actors of Internet network

The actors of Internet whose mode of responsibility is rather vague are the suppliers of tools of research, of forums of discussions (newsgroup)^410(*), clavardage (cat)^411(*) or bonds hypertexts. These various activities were forgotten by certain legislators, in particular by the legislators European and French. Indeed, the suppliers of tools of research and the creators of hyperlinks do not have a mode of responsibility defined in the Directive on the electronic trade nor in the Law for August 1, 2000. Nevertheless, the European text asks the European Commission to present a making report/ratio « proposals relating to the responsibility for the suppliers of bonds of hypertext and services of search engine before January 17, 2003 »^412(*). However, no report/ratio has, for the moment, summer announced on this subject. The same applies to the French law which literally forgot them in its drafting. Thus these PSI remain subjected to the common right of the civil and penal liability. The doctrines are confused on the mode of responsibility applicable to these actors^413(*), but in general, it applies common de jure system to them^414(*). It is besides what recommends the Forum of the rights of the Internet^415(*) for the creators of hyperlinks^416(*) and the organizers of forums of discussions on the network^417(*). However, it would seem that the mode of responsibility for the supplier of lodging could also be applicable for these protagonists^418(*). In the United States, the DMCA^419(*) envisages provisions relating to the responsibility for the creators of bonds hypertexts but limited to the acts for counterfeit^420(*). The LCJTI also has a treating article of the responsibility for the services of reference. They can, in particular, engage their responsibility if they have in fact knowledge which the services provided are used for the realization of an activity in illicit matter and which they promptly do not cease serving them^421(*). However, the organizers of forums of discussions are not aimed by this article.

This absence of clearness in the mode of responsibility for these actors involves a certain insecurity on the network. However, they are very important in the operation of the network. This situation by which they were forgotten or treated in a summary way by the various legislations can appear surprising.

* ⁴¹⁰ The forum of discussion is the service offered by a waiter of information or an electronic babillard in a network like Internet and which makes it possible a group of people to exchange their opinions, their ideas on a subject particular, on line or remote, according to varied formulas (mailing list, channel IRC, etc)  ; catch on the Office Québécois of the French lange, on line on  : < http://www.olf.gouv.qc.ca/ >.

* ⁴¹¹ Id.  : The clavardage is the activity making it possible a Net surfer to have a written, interactive conversation and in real time with other Net surfers, by interposed keyboard.

* ⁴¹² Directive on the trade electronic, above mentioned, note 176, art 21-2.

* ⁴¹³ Indeed, certain authors apply the mode of the responsibility for the editors, the producers, the counterfeit... There is no consensus on the rules to apply for this kind of people receiving benefits.

* ⁴¹⁴ See Valerie SÉDELLIAN, In connection with the responsibility for the tools of research, February 19, 2000, on line on  : Juriscom.net < http://www.juriscom.net/chr/2/fr20000219.htm > (site visited on January 20, 2004)  ; C. ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, loc. cit., note 275.

* ⁴¹⁵ It is Christian PAUL in his report/ratio of July 2000 (COp cit., note 17, 16) which recommended the installation of a Forum of the rights of the Internet, an organization of a new kind which should be made up like an association and would have a mission of general interest in order to allow a better regulation of Internet network and the dialog with the Net surfers.

* ⁴¹⁶ RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the creators for hyperlinks towards the illicit contents  ? , COp cit., note 352.

* ⁴¹⁷ RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the organizers for forums for discussion on the Web  ? , July 8, 2003, on line on  : The Forum of the rights of the Internet < http://www.foruminternet.org/telechargement/documents/reco-forums-20030708.htm > (site visited on January 20, 2004). The forums of discussions in general have a regulator which exerts a control on the various contents published.

* ⁴¹⁸ «  With our direction, the responsibility for the suppliers of hyperlinks because of the contents of the dependant sites must be appreciated in the same terms as the responsibility for the suppliers of lodging  »  : T. VERBIEST and É.WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 172.

* ⁴¹⁹ DMCA, above mentioned, note 214.

* ⁴²⁰ See T. VERBIEST, «  Bill for confidence in the numerical economy  : critical analyzes  », loc. cit. note 236, 11  ; Thibault VERBIEST and Gilone of UDEKEM, Responsibility for the suppliers of hyperlinks and search engines  : last developments, August 18, 2003, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=810 > (site visited on January 20, 2004).

* ⁴²¹ LCJTI, above mentioned, note 252, art 22 last subparagraph.