Conventionally, when assigning the adjective "HADOPI" to a regime responsibility, this may encourage the reader to flee. Indeed, how not to fear a new rant for or against this famous law "creation and internet" which had the merit of shedding a lot of ink on the Internet.
This is to revert to an article by the famous law No. 2009-669 of 12 June 2009 to promote the dissemination and protection of creation on the Internet. Article 27 of the Act has, in effect, amended Article 93-3 of the law of 29 July 1982 on freedom of communication to create a liability regime laid to operators of chat rooms. This responsibility
operators discussion forums have been several twists and turns before the law "and creating the internet" on which he should stop quickly.
Discussion forums and Law of 1 August 2000
The Act of 1 August 2000 created the first system of liability in favor of managed hosting. According to this text, " persons or entities that provide, free of charge or against payment, the direct and permanent storage for disposal of public signals, writings, images, sounds or messages of any kind available through these services, would be criminally or civilly responsible for the content of these services as if, having been seized by a judicial authority, they did not act promptly to prevent access to that content. "
Side Court, the judges quickly made under the Act of 1 August 2000 in the discussion forums. Paris Court had been estimated in a decision dated October 12, 2000 that:
" the Vienna is a combination computer hosting provider that offers such contributors an opportunity to access a particular discussion forum via a new system which it is acquired in the debate that the dialogues are updated almost instantaneously and that they can be accessed freely for several days, without any restraint and by a wide audience "Similarly, the judge considered in an order dated February 18, 2002 that:
" it should be noted that debt service offered on the establishment of a forum for users to exchange messages among themselves, independently of other site activities that may fall Boursorama a different legal regime, society must be Finance Net considered to ensure this point the direct and permanent storage for disposal of the public within the meaning of messages Article 43-8 of the Act of September 30, 1986, as amended by the Act of 1 August 2000 "Discussion forums and LCEN
Following the adoption of the Law of 21 June 2004 on Confidence in the digital economy, the liability of Internet intermediaries is fixed sections 6.I.2 6.I.3 and the law:
On the civilian side, " persons or entities that provide , even gratuitously, for provision of public services to the public online communication, storage of signals, writing, images, sounds or messages of any kind provided by recipients of these services can not see their liability incurred as a result of activities or information stored at the request of a recipient of these services if they did not have actual knowledge of their illegal nature or facts and circumstances revealing this character or if from the moment they had this knowledge, they acted promptly to remove such data or make access impossible. "
At the criminal, these people" can see criminally liable in respect of information stored at the request of a recipient of these services if they did not have actual knowledge activity or illegal information or if, from the moment they were aware, they acted promptly to remove such information or make access impossible. "On the application of LCEN operators of chat, he seemed not to be any doubt in parliamentary debates. In the Notice filed by Michele Tabarot on behalf of the Law Commission when considering LCEN of the member stated that:
"The definition of operators covered by the article does not distinguish: all are concerned intermediaries whose business is to permanently store data (storage "Standing"), without affecting the content (storage "live") so as to make them accessible to the public via a public communication service online. Regardless of whether information provided by professional editors of sites, by users from marketplaces or auction sites online or by contributors to a forum "Side Court, judges also appear to have followed this logic. The Tribunal de Grande Instance de Lyon has estimated the February 21, 2005:
"recourse to parliamentary work of the Law of 21 June 2004 suggests that the promoters of that law have expressed their intention to make the organizers of newsgroups Article 43-8 of the Act of September 30, 1986, that according to parliamentary debates, it should indeed to refer more to the definition of community service accommodation, as defined in Article 14 of the European directive of June 8, 2000, which does not limit the activity of providing accommodation to purely technical but identifies more precisely the set of "intermediation functions" which are not the simple transfer of information.This was confirmed later. In an order dated 14 November 2007, the Court of Appeal of Paris has been estimated about society that AuFeminin.com " as an organizer of a forum with a moderator after the fact, that company not exposed to liability only under the conditions applicable to the hosting provider since it provides direct storage of messages without making prior scrutiny on them, which excludes any obligation to monitor .
LCEN This application of the discussion forums was confirmed by 12 December 2007 the Court of Appeal of Versailles which found that " this text should be applied to the organizers of unmoderated or moderated forum post" , which was the case here, the Court under the bailiff "which could send a message online without a priori .
Thus, the primary criterion used by judges to rule in favor of implementing the system of liability based on the fitted LCEN operators of chat is mainly moderate or unmoderated nature of online content that may be disseminated. In the presence of a moderation retrospectively or, in the absence of any restraint, the operator of the forum might well benefit from the liability of hosting providers, while its counterpart carrying out a prior restraint remain in the field of liability law and, in respect of infringements of press within the scope of paragraph 1 of Article 93-3 of the Act of 29 July 1982 on freedom of communication.
Indeed, this Section 93-3 establishes a principle of editorial responsibility on the head of publishing director for any offense committed against a news website which has been, prior to its release of prior fixing. Moderation "a priori" that can be analyzed as a prior fixation, editorial responsibility (known as "responsibility cascade") applies to the operator of the discussion forum.
Thus, if we sum, according LCEN:
- operator of unmoderated discussion forum, a priori benefit of the liability regime established by the fitted LCEN
- Operator discussion forum moderated a priori law or editorial for press offenses.
And HADOPI came ...
the occasion of the review of the law creating Internet and by the National Assembly, the New Centre Party led by MP Jean Dionis du Séjour filed a preliminary amendment 1) create a status of online news editor and 2) establish a special legal regime for crimes Press committed in the "spaces for personal contributions."
The new liability regime is as follows:
"When the offense from the content of a message sent by a visitor to a communication service to the public online through this service and made available to the public an area of personal contributions identified as such, the director or the co-editor can not see his criminal liability as a principal if it is established that he had no actual knowledge of the message before it is online or if, from the moment he became aware of it acted promptly to remove this message. "Members justify this provision as follows:" It is therefore proposed to provide that the contributions of users give rise to a liability regime attenuated, regardless of the type moderation adopted, and they are not the responsibility of the editor as a principal, unless had actual knowledge of the content available to the public. "
Thus, after the adoption of the law HADOPI, the situation is as follows:
- operator of unmoderated discussion forum, a priori benefit of the liability regime established by the fitted LCEN except in respect of infringements Releases subject to the Act of 93-3 last paragraph.
- operator moderated discussion forum, a priori law except in matters of press offenses subject to the Act of 93-3 last paragraph.
Now decrypt the famous last paragraph of Article 93-3 to under Article 6 of the LCEN (and more precisely in 6-I-3 of the LCEN who installs the system of criminal liability of Internet intermediaries).
To engage the responsibility of the operator of the forum, one must demonstrate:
- the presence of a message on a discussion forum
- the fact that message constitutes an infringement of press
- the that the operator of the Forum was aware of the message before it is online or has not acted promptly to carry out its withdrawal.
This scheme differs widely from that presented by the LCEN more than one way:
1 / regime of 93-3 does not set a notification method , unlike LCEN (and some judges have considered that the actual knowledge of the content was taking place only after notification of compliance by the victim notification requirements imposed by LCEN). Thus, a simple email notification is it?
particular, notification of LCEN requires the victim to justify to the intermediary of the facts or law on the illegality of the content in question. Here, it seems that a mere notification of content saying "it is defamatory" seems sufficient to create an "actual knowledge".
2 / regime 93-3 intended to apply to offenses Press. Gold, and the jurisprudence of the Constitutional Council and interpretations, press offenses are not defined in LCEN content "manifestly illegal" . Thus, under LCEN, which saw a host notify defamatory content could argue the absence of a blatantly illegal (and particularly the fact that defamation is assessed in concreto). With the plan 93-3, as possible.
Where the Constitutional Council had protected operators forum of a commitment to responsibility under remarks that on press offenses (defamation, slander, etc..) Creation and Internet law reinstated this responsibility.
If we notify a blogger content to an operator or a discussion forum, arguing defamatory or offensive content, if it does not make its removal, the liability can then be initiated.
Such a change is not neutral. Unlike the ambiguous wording of the amendment, this amendment was not intended to apply exclusively to online news publishers, but to all citizens, to all Internet users, to all bloggers to provide help to speak, to all directors of discussion forums.
If you try a new summary of Article 93-3, it would this: a blogger or an administrator of a forum of discussion will be responsible for - first - a press offense 1) conduct a prior restraint or 2) if advised of the presence of such content and does not conduct its prompt removal. In terms
LCEN, only a priori moderation was likely to engage the responsibility of that blogger.
Can we infer that this change is a profound mistake? The answer seems positive. While parliamentarians wanted to reduce the liability of directors of discussion forums or bloggers, the HADOPI has simply backfired by creating a liability for the content (press offenses) for which the LCEN and the Constitutional Council had preferred to establish some protection intermediaries.
And in fact, the first court decisions are based on these new provisions, arguing - incorrectly in the light of the foregoing analysis - a criminal law "softer" than the previous framework.
Thus, 17ech the High Court held in Paris September 15, 2010 a dispute between the operator of a discussion forum at the French association of infrared thermography in buildings, industry and research following the distribution of various messages, some of which the operator were the author, others for which third parties were responsible.
Judges are in their decision:
"Mr. X is the editor of this site and the moderator of this forum. It is also not disputed that he is the author Messages posted to this forum under the username "Administrator" and "Thermoderator.
It is not the author for other posts mentioned by applicants under different pseudonyms and the forum in question is not moderate. But the plaintiffs argue, without being contradicted, that the two themes of the forum at issue, namely, in the "Not happy!", "Anger, irritation, annoyance: About the AFTIB! Incredible!" And, a section on "The Individual and Thermography", "Research of thermal bridges" were determined by the defendant in advance, and rightly argue that Mr X did not hesitate to revive the discussion, speak in his capacity "administrator" or "moderator" under transparent pseudonyms, the most serious attacks against the AFTIB, showing that he was perfectly aware of the messages in question that he approved of the tone and created the online ".And finally, the judges felt that
"the responsibility of Mr. X will be used, if necessary - and subject to the following-in his capacity as editor of the site - including the discussion forum, for all messages signed" Administrator "and "Thermoderator" in his capacity as producer of the forum for other messages in question "Thus, several conclusions:
- Judges apply the law HADOPI ongoing procedures;
- The choice of topics and intervention as moderator of the discussions are worth "read messages"
- The responsibility of the operator of the forum is held for both own content which is the author as for other messages.
This new regime of responsibility for contributing space is not neutral. Press offenses are part of one of the most sensitive legal matters and the appreciation of defamatory content will depend on several factors: the good faith of the author, except for truth but also the prescription of such About. Remember particular affirm that a person is a "crook" or "thief" may qualify as defamation. Therefore caution.
Source: TGI Paris, 15/09/2010, French Association of infrared thermography in the building industry and R & a. c / X. (Unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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