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

CHAPTER 2

THE PASSAGE OF A SYSTEMATIC RESPONSIBILITY TO A CONDITIONAL RESPONSIBILITY

In order to fight against the presence of these illicit contents, the legislator intervened to set up a mode of responsibility and thus to make the network sedentary. The courts were the first to make enter in manner expresses the right on the network. Indeed the judges, in a preoccupation with a repair of the injury caused with the victim, made systematically responsible the PSI of the messages illicit being on their waiters, whereas they were not the authors. This system, very criticized, appeared for the majority of the doctrines as an unjust solution for these people, even illogical. But, the opposite situation, by not holding them responsible, would have been quite as absurd. These people receiving benefits should not thus be left on side. This is why the legislators tried to found a mode of responsibility righter (I). This mode thus tried to reach a balance between on the one hand, the installation of an automatic responsibility and on the other hand, a total absence of responsibility. The selected solution is that to apply to these PSI, a conditional responsibility (II).

Section I : Towards a mode of responsibility righter

The characteristics specific to Internet, whose principal one is to be a space without border, caused serious problems for the victims which wished to continue the authors of the litigious messages circulating on the network. They had no possibility to identify them. These authors, in addition, were very often abroad and in addition, insolvent. The courts, to counter this nuisance, tried to release from the obligations against the PSI for finally, to see appearing more specific legislations (§1). In spite of the particular intervention of the legislator, the common right always remains in application in certain cases (§2).

Paragraph 1 : The emergence of a specific legislative framework

New laws thus came into effect in order to make it surer for the Net surfers. Before the development of such a legislative device, many French attempts took place whose majority were fallen through (A). Canada also knew a long legislative work which proved less tormented than its French counterpart (B).

A) The installation of the French legislation : several fallen through attempts

The installation of the French legislation resulted in the emergence of a first outlines somewhat discussed (1), for finally leading by the drafting of a law coming to transpose a European Directive (2).

1) A first discussed outline

The French legal system takes its source in several decisions treating of Internet network and is also inspired by many doctrinal texts. It will thus be appropriate initially, to discuss more particularly the contribution of jurisprudence (A), then in the second time, to be interested in legislative construction (b).

a) Jurisprudential attempts

Internet, as we already could expose it, is a mean of communication posing of serious problems and more particularly, with regard to its regulation. Because of the specified inherent ones in this new support, the infringements, increasingly many on the network, often remained unpunished or with difficulty appréhendables. The courts thus were seen confronted with difficulties as regards responsibility for the PSI. Thus, in the absence of specific legislation, the judges tried to set up obligations at the load of the PSI. Thus the Court of first authority of Paris^155(*) intervened by applying the common right of the responsibility according to articles' 1382 and 1383 for the French Civil code^156(*). In this business having opposed the Union of the Jewish Students of France (UEJF) to several suppliers of access of Internet (FAI) in connection with messages anti-semites, the judges retained with the load of these people receiving benefits a certain obligation of monitoring. This judgment was the first to treat responsibility for the latter in the absence of any specific regulation. Vis-a-vis these questions of responsibility increasingly present, the PSI decided to intervene while stating that they could be held indeed responsible but with some limit. Indeed, they argued that they theirs were impossible to check all the contents circulating on the network and that in spite of the absence of legal obligation, they were going to be essential a certain order deontologic.

After this first advanced, intervenes another decision very discussed, in particular in the field of the penal responsibility. This decision will be used later on basic for the development of the regulation. It is about the business Estelle Hallyday of June 9, 1998^157(*). This decision opposes a famous French mannequin to a supplier of lodging which let diffuse private photographs the stripped representative. The stereotypes were diffused without no assent being established. The Court thus condemned the suppliers on the base of the obligation to take care of the good morality of lodged, to comply with the deontologic rules, the laws of the thirds, the laws and the payments :

« Waited until on the question of the responsibility for the supplier of lodging, it appears necessary to specify that the supplier of lodging has the obligation to take care of the good morality of those which it lodges, with the respect by those of the deontologic rules governing the Web and with the respect by them of the laws and the payments and the rights of the thirds ».

These reasons are very contestable insofar as it seems illusory to believe that a person receiving benefits can respect these obligations. It is, indeed, impossible for this last to know in detail the lodged sites and to check in a systematic way all disseminated information. This business thus caused a certain polemic. On the one hand, only the author of detrimental contents can, in theory, responsible held being and not the shelterer. Moreover, the freedom of expression, morals and the censure are likely to make emerge from the problems because of creation by the judges of the obligation to check the contents of the sites and thus to cease any illicit diffusion. Consequently, the PSI is found subjugated with a complex role. This judgment was exposed before the Court of Appeal of Paris, February 10, 1999. This one decided that the shelterer « by lodging in an anonymous way on the site (...) obviously exceed the role of a simple transmitter of information » since it draws from the benefit of this lodging.

Another business, of the same importance, came to feed the debate on the responsibility for the PSI. Indeed, the first solution seemed to tend towards a will to protect the shelterers from Web pages whereas this new judgment goes against the movement militant while choosing an exemption of responsibility^158(*). It is about the Lacoste business of December 8, 1999^159(*) whose facts are very similar to the Hallyday decision. This judgment gives a definition of the activity of a person receiving benefits of lodging^160(*) and enumerates the various obligations with its load. Indeed, it « supplier of lodging is held of a general obligation of prudence and diligence. It rests with to him to take the precautions necessary to avoid injuring the rights of the thirds and he must implement for this purpose the reasonable means of information, vigilance and action ^»161(*). These obligations of means carry « on the precautions to be taken and controls to be implemented to prevent or put an end to the storage and the supply of contrary messages to the provisions legal into force or prejudicial with the rights of the thirds concerned »^162(*). They « do not imply the general and systematic examination contents of the lodged sites ». Consequently, the supplier found himself with a role going beyond the simple transmission of information because of his statute of contracting of the editor of the site whose contents could appear prejudicial. He had thus the capacity to check the content of it even if he did not have to carry out « a meticulous and thorough monitoring of the contents of the sites »^163(*). It was to thus only take « reasonable measurements »^164(*) that any careful and diligent person would take. This judgment will be confirmed later by other decisions^165(*) which will retain the responsibility for the supplier on the base of the responsibility for common right founded on articles 1382^166(*) or 1383^167(*) of the French Civil code. It is thus a question of characterizing the fault, the imprudence or the negligence of this intermediary to engage its responsibility. The Lacoste business it was also carried before the Court of Appeal of Versailles which will take again the obligations with the load of the person receiving benefits and will state that the only limits with its diligence are « incompetence or the abuse right of the shelterer to appreciate the illegality, the illiceity or the detrimental character of the litigious contents »^168(*). It also considered that the supplier was to take preventive measures such as the prohibition of anonymity and adhesion with a charter of behavior. This stop thus stresses the difficulty in finding a balance between the interests of the injured thirds and the people receiving benefits of lodging which systematically call upon impossibility of checking the entirety of the contents that they diffuse. Moreover, this decision intervened at the time when a Bill amending was discussed the Law September 30, 1986 relating to the freedom of communication which will lay down new rules.

One of the most important decisions on this question is the Yahoo business^169(*) which once again comes to feed the controversy. It was acted as the species, of the auction sale of Nazis objects considered by various associations (UEJF and LICRA) a propaganda anti-semite. This judgment forced the Yahoo company to take technical measures necessary in order to filter the access of the French Net surfers and to deliver an informational message on the risks incurred in the event of continuations of the consultation of such a site. These measurements had as a base the fact that simple visualization in France of Nazis objects constituted a violation of the French law and a disorder with the internal law and order. The judges by these reasons thus wanted « to nationalize » part of Internet. This business was very criticized and, in particular, it was regarded as a threat with the freedom of expression on Internet. It was an awkward attempt to impose its national law on the whole of the network^170(*). On the other hand, it shows the sign of a ripening of the legal framework of Internet and emergence of a new approach of the courts concerning their competence. It also showed that it was possible technically to supervise the sites and to prohibit those being of an illicit nature on the network^171(*). This ordinance was declared impracticable in the United States by the federal Court of San Jose^172(*), estimating that it was against the principle of freedom of expression as guaranteed by the First Amendment of the American Constitution^173(*). Recently, the saga Yahoo continues since the French judges could once again treat this business but this time with the penal one^174(*).

Finally to finish, a last business^175(*) held the attention. It is about the litigation opposing association antiracist I show with many FAI and the Association of the suppliers of access and services to Internet (AFA), concerning the American gate front14.org which gathers sites néo-Nazis and xenophobes. In this business, the judge recalls that the current substantive law does not impose any obligation on the FAI, except that to provide to their customers tools for filtering. Consequently, they do not have any personal obligation of filtering. It to them is left it to to freely determine measurements appearing to them necessary and possible vis-a-vis to the report of the illicit character of the sites. They can thus refuse to provide an access Internet and if they do not do it, they could see their committed responsibility. Moreover, the current right does not make it possible to require of the person receiving benefits whom it puts a term at a violation or whom it warns a violation. Nevertheless, the judge specifies that one needs a dynamic participation of the whole of the actors of Internet to manage to control the network and this, for two reasons. Initially, it is difficult to hope for an even minimal self-regulation of Internet, means of all the aggressions, where reign still the ideology of a total and absolute freedom without any constraint. In the second place, there is a quite real risk to see developing « paradise of the Internet » where it will be very difficult to reach the cyberdélinquants which will profit from a favorable legal space. This business I show anticipate the future European Directive^176(*) which founds a derogatory mode for the FAI. Moreover, it establishes a new concept, that of the legal not-responsibility accompanied by a moral judgment. The FAI must thus precede the current right in the name of morals, which can raise certain difficulties. The intermediaries they are placed best to determine what is or not moral ? This is not the role of the judge ? Teststemyà it not there a risk of abuse ? These questions will be treated further in our study.

The following developments make it possible to note that these various decisions constituted the starting point of the legislative projects and sometimes even, the occasion to improve the current legislation.

* ¹⁵⁵ UEJF C. Calvacom and others, TGI Paris, ord.réf., June 12, 1996.

* ¹⁵⁶ C. civ., above mentioned, note 37.

* ¹⁵⁷ V. Lacambre E.C. Lefèbure-Hallyday, TGI Paris, ord.réf., June 9, 1998, Cah. Lamy Data processing. 1998.E.1, note F. OLIVIER and E. BARBRY.

* ¹⁵⁸ Indra BALASSOUPRAMANIANE, «  The responsibility for the shelterers  », (2000) 32 J.duB n°10, June 1, 2000, on line on  : < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol32/no10/surlenet.html > (site visited on March 13, 2004)  ; C. PAUL, COp cit., note 17, p. 41.

* ¹⁵⁹ Lacoste C. SA Multimania Production and A., TGI Nanterre, 1st CH. A., December 8, 1999, J.C.P. 2000.II.10279, note Frederique OLIVIER and Eric BARBRY.

* ¹⁶⁰ Id.  : The activity of a person receiving benefits of lodging is defined as «  durable service of storage of information which domiciliation on its waiter makes accessible available and to the people eager to consult them  ».

* ¹⁶¹ See for more information  : Sabine MARCELLIN and Lionel COSTES (to dir.), Lamy right Guide of data processing and the networks  : Solutions and applications - Practical contractual, Paris, ED. Lamy, 2002, p. 699  ; Frederique OLIVIER and Eric BARBRY, Conditions of the civil liability for the suppliers of lodging of a site on Internet network, J.C.P. 2000. II.10279, p.577  ; and finally, Thibault VERBIEST and Etienne WERY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », (2001) n°6000 Newspaper of the Courts, Brussels, p.165.

* ¹⁶² Multimania C. Lynda Lacoste, CA Versailles, June 8, 2000, on line on  : < http://www.gitton.net/jurisprudence/r2000-06-08.htm > (site visited on March 13, 2004).

* ¹⁶³ Lacoste C. SA Multimania Production and A., above mentioned, note 159.

* ¹⁶⁴ Id.

* ¹⁶⁵3 Swiss, SNC 3SH, Helline, Redcats, Redoute, the Which source C. Axinet Communication and Consorts Guiffault, TGI Nanterre, January 31, 2000, ord.réf., on line on  : legalis.net < http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=internet_illicitte.htm >; Pagotto C. Gallopin, Lacambre and others, TGI Paris, March 24, 2000, on line on  : Juris-sorter < http://www.juris-classeur.com/ > (visited sites on March 13, 2004)  ; See also S. MARCELLIN and L. COSTES (to dir.), Lamy Guide, COp cit., note 161, n°2813, p.1588.

* ¹⁶⁶ The creator of the site is responsible on the base for this article 1382 C. civ.  : «  Done everything unspecified of the man, who causes with others a damage, obliges that by the fault of which it arrived, to repair it  ».

* ¹⁶⁷ The mode of responsibility for the supplier of lodging must be established on the base of article 1383 C. civ.  : «  Each one is responsible for the damage that it because not only by its fact, but still by its negligence or its imprudence  ».

* ¹⁶⁸ Multimania C. Lynda Lacoste, above mentioned, note 162.

* ¹⁶⁹ UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, above mentioned, note 25.

* ¹⁷⁰ Joel R. REIDENBERG, «  The Yahoo business  ! and the international democratization of Internet  », Com. Com. électr. May 2000. n°12, p.14,

* ¹⁷¹ See the article of Luc GRYNBAUM, «  The Directive «  trade electronic  » or worrying it return of legal individualism  », Com. Com. électr. July/August 2001. n°7-8, p.14. These current techniques available are not nevertheless effective.

* ¹⁷² United-State Short for the Northern District off California, San Jose Division, above mentioned District, note 49.

* ¹⁷³ American constitution of September 17, 1787, above mentioned, note 147.

* ¹⁷⁴ The correctional Court of Paris released the former president of Yahoo. The magistrates judged that nor the offense «  of apology for crime, nor the infringment of port or uniform, badge or emblem of a guilty person of crime against humanity  », were not made up. This judgment puts an end to the Yahoo business. See the current events of Yahoo France, Sales of Nazis objects  : justice release the ex-owner of Yahoo, Tuesday February 11, 2003, on line on  : < http://fr.news.yahoo.com/030211/85/31mek.html >  ; and the court of Paris puts out of cause the ex-owner of Yahoo in the sale of objects Nazis, Tuesday February 11, 2003, on line on  : < http://fr.news.yahoo.com/030211/1/31mhj.html > (visited sites on March 13, 2004).

* ¹⁷⁵ I show C. Société General Communications and A., above mentioned, note 47  ; See also the article Etienne WERY, Affaire I show  : suppliers of accesses released from the obligation of filtering, November 2, 2001, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=476 > (site visited on March 13, 2004).

* ¹⁷⁶ 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 (hereafter quoted «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 > (site visited on March 13, 2004).