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

APPENDIX

THE LAW N°2004-575

FOR CONFIDENCE IN the NUMERICAL ECONOMY (LEN)

The LEN^593(*), published in the Official Journal n°143 of June 22, 2004, knew a hard development. Moreover, it was submitted to the constitutional Council on May 18, 2004, which carried out the cancellation and the modification of certain provisions. Thus we analyze the principal innovations concerning the mode of responsibility for the service providers Internet (PSI) (I) and the qualification of Internet network (II).

I. service providers Internet

Article 6 of the LEN is the new treating text of the PSI. The mode of the suppliers of lodging underwent certain modifications as well as the procedure in summary procedure or on request, the notification and the obligation of monitoring.

1. The supplier of lodging

The treating new article of the supplier of lodging lays out from now on that :

« 2. The persons or entities which ensure, even on a purely free basis, for provision of the public by services of communication to the public in line, the storage of signals, writings, images, sounds or messages of any nature provided by recipients of these services cannot see their committed civil liability because of the activities or the information stored at the request of a recipient of these services if they did not have indeed knowledge of their illicit nature or facts and circumstances revealing this character or if, as of the moment when they were informed this of it, they acted promptly to withdraw these data or to make of them the access impossible.

The preceding subparagraph does not apply when the recipient of the service acts under the authority or the control of the person aimed to that the subparagraph ».

Certain modifications were thus made. The final law chose to use the formulation « revealing this illicit character ». Consequently, an only apparent character is enough to withdraw information circulating on Internet what brings a certain insecurity. It is clear that that undermines the principle of the freedom of expression and to the rights of the person. However, should be brought an important precision. Indeed, the constitutional Council issued certain reserves concerning the mode of responsibility for the PSI and added an additional condition. For this reason it stipulates that to engage the responsibility for these people receiving benefits, « it would be necessary moreover than the illicit character of denounced information is manifest or than a judge ordered the withdrawal of it ».

Another modification intervened. Indeed, the LEN adds a new provision in article 6. It lays out that the civil liability for the shelterer is not committed fact « activities or the information stored at the request of a recipient of these services ». And another subparagraph which lays out that « the preceding subparagraph does not apply when the recipient of the service acts under the authority or the control of the person aimed to that the subparagraph ». They are new provisions until not approached there by the other bills except the last project of the Senate in second reading. The LEN transposes subparagraph 2 of article 14 of the European Directive on the electronic trade^594(*) which specifies the derogatory mode of responsibility for the shelterers who does not apply when the recipient of the service acts under the control or the authority of the shelterer^595(*). Indeed, the LEN seems to want to insert the idea that the shelterer can act only if its customer makes him the request of it. It wants to frame the action of this person receiving benefits who sees himself granting a capacity of censure. This precision makes it possible to limit the withdrawals and blockings of information since from now on, it is the Net surfer who becomes the element release of the exercise of the censure^596(*). In all the case, this practice can involve important abuses and it reduces the judge to a simple role of control a posteriori if the business is carried in front of the courts. These new provisions are also taken again for the penal responsibility for the shelterers^597(*).

2. Procedure in summary procedure or on request

The legal authority can prescribe in summary procedure or on request either with the supplier of lodging or failing this, and it is about an innovation, with the FAI to prevent or put an end to a damage^598(*). The judge can thus take the required measures which is appropriate to cease the diffusion of contents considered to be illicit. He can now either cease a damage or preventing it. This new formulation transposes the directive accurately since article 13 subparagraph 3 and article 14 subparagraph 3 specify that a legal authority can require of the person receiving benefits « that it puts a term at a violation or that it prevents a violation ». The role of the judge is respected and corresponds to its competences defined in articles 808 and 809 of the new code of civil procedure^599(*).

3. The notification

Compared to the preceding projects, the formulation « optional procedure of notification » disappeared and a substitution from « considered acquired » by « to suppose » was carried out what makes it possible to reduce the burden of the proof. Indeed, when knowledge is supposed, the defendant finds himself only vis-a-vis a simple presumption, therefore the proof is lighter than the preceding one. This article thus creates « a presumption of acquisition, by the shelterer, of the knowledge of the litigious facts »^600(*) which would have probatory force in front of the judge.

Moreover, the final law comprises a procedure to fight against the untrue allegations. Certain bills had removed it. From now on, the drafting of the article is as follows : « the fact, for any person, to present at the people mentioned to the 2 contents or an activity as being illicit with an aim of obtaining the withdrawal from it or of putting an end to some the diffusion, whereas it knows this inaccurate information, is punished of sorrow a one year of imprisonment and 15000 € of fine »^601(*). This provision makes it possible to dissuade the Net surfers who would benefit from this new legislation to withdraw or make block licit information.

4. Obligation of monitoring

Once again the Parliament showed a certain lack of consensus on this point. Indeed, according to whether the bill is in front of the French National Assembly or the Senate, this obligation of monitoring differs. The final law sliced by introducing new subparagraphs which lay out :

« The preceding subparagraph is without damage of any activity of targeted and temporary monitoring required by the legal authority.

Taking into account general importance attached to the repression of the apology for the crimes against humanity, of the incentive to racial hatred as well as childish pornography, the people mentioned above must contribute to the fight against the diffusion of the infringements aimed to the fifth and eighth subparagraphs of article 24 of the law of July 29, 1881 on the freedom of the press and to article 227-23 of the penal code.

For this reason, they must set up an easily accessible and visible device making it possible any person to bring to their attention this type of data. They also have the obligation, on the one hand, to promptly inform the qualified public authorities of all illicit activities mentioned with the preceding subparagraph which would be announced to them and which the recipients of their services would exert, and, on the other hand, to make public the means that they devote to the fight against these illicit activities.

Any failure with the obligations defined in the preceding subparagraph is punished sorrows envisaged to the 1 of the VI ».

From now on, the PSI will have to carry out a certain monitoring by means of a preventive location of data relating to the apology for the war crimes, racism and the pedophilia. The Directive on the electronic trade envisages this possibility of requiring PSI which they prevent a violation. They could be brought to supervise the contents but only in one specific case^602(*). Moreover, the PSI must set up a device to facilitate the fight against these infringements.

II. The qualification of Internet network

The final law finally sliced on the qualification of Internet. Thus we will see initially, the distinction between the right of audio-visual and the applicable duty on Internet network and in second place, the creation of a new category.

1. Distinction enters the right of audio-visual and the applicable duty on Internet network

The Parliament finally decided not to allot all the regulation at only one organization, the Higher Council of Audio-visual (SCA). The new provisions create a specific right of the Internet network which does not concern the right of audio-visual with regard to the services other than those of television and the radio. Thus the LEN makes definitively leave Internet the services of audio-visual communication.

2. Creation of a new category

The LEN creates and inserts in article 1 a new concept « the communication with the public by electronic way ». This east term defines as « very placed at the disposal of the public or categories of public, by a process of electronic communication, signs, signals, writings, images, sounds or messages of any nature which do not have the character of a private correspondence »^603(*). This definition has a broad field of application which makes it possible to include the greatest possible number of media such as Internet. This new generic category is subdivided into two : on the one hand, it « audio-visual communication »^604(*) which includes/understands television and the radio on any support such as Internet and in addition, it « communication with the public on line » which is defined as any transmission, on individual request, of numerical data by an electronic process of communication^605(*). The addition of the definition of these concepts makes it possible to elude the applicable duty on Internet network and to return them more coherent faces to concerns of the PSI which are the first aimed in this law. Moreover, that also makes it possible to thus avoid the amalgams with the audio-visual right and the right of the press in certain cases.

Conclusion

The French law has its law Internet henceforth. It is not perfect and its application is likely to bring certain difficulties but it is still early to decide. It will thus be necessary to await its legal application to know if it corresponds truly to realities of the network.

* ⁵⁹³ See also the site of the French National Assembly on the numerical Economy, on line on  : < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp#modifAN2 > and that of Légifrance, on line on  : < http://www.legifrance.gouv.fr/ >.

* ⁵⁹⁴ Directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market («directive on the electronic trade»), OJ C.E n° L 178 of the 17/07/2000, p. 0001- 0016  ; and on line on  : < http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=fr&numdoc=32000L0031&model=guichett >.

* ⁵⁹⁵ Report/ratio of the Senate n°232 Misters Pierre HEDGEHOG and Bruno SIDO, deposited on March 3, 2004, on line on  : site of the Senate < http://www.senat.fr/rap/l03-232/l03-2320.html#toc0 > (site visited on April 13, 2004).

* ⁵⁹⁶ Id.  : The report/ratio specifies that «  to require of the technical people receiving benefits to erase any trace of obviously illicit acts interferes with the police investigations and can lead to the dissimulation of the criminal networks. However it would not know y to have of fight effective against the illegal contents on line that thanks to the continuation of the authors of these contents  ». It is true that it should not be forgotten that the first person in charge is the author of the litigious message and that by withdrawing this message, the evidence or same the police investigations will be more difficult to carry out even if it should not be forgotten that in any event, the shelterer must preserve the data allowing the identification of the content provider which will be thus easier to continue.

* ⁵⁹⁷ LEN, art 6.

* ⁵⁹⁸ Id.  : art 8.

* ⁵⁹⁹ Art 808 of the new code of civil procedure  : «  in all the emergency cases, the president of the Court of Bankruptcy can order in summary procedure all measurements which do not encounter any serious dispute or which the existence of a disagreement justifies  »  ; Art 809 of the same code  : «  The president always can, even in the presence of a serious dispute, to prescribe in summary procedure academies measurements or of repairing which assert himself, either to prevent an imminent damage, or to put an end to an obviously illicit disorder. Whenever the existence of the obligation is not seriously contestable, it can grant a provision to the creditor, or order the execution of the obligation even if it is about an obligation to make  ».

* ⁶⁰⁰ Report/ratio of the Senate n°232 Misters Pierre HEDGEHOG and Bruno SIDO, COp cit., note 3.

* ⁶⁰¹ LEN, art 6.

* ⁶⁰² Directive on the trade electronic, above mentioned, note 2, art 15 and considering 47.

* ⁶⁰³ LEN, art 1st.

* ⁶⁰⁴ Id.

* ⁶⁰⁵ Id.