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The European Commission reiterated its wish to introduce the Screening for child pornography

While in France, the legal framework for blocking access to child pornography is being finally adopted, several MEPs had asked the European Commission to provide explanations as to support, including financial, given to the network "CIRCAMP", a project of "COSPOL" (Comprehensive Operational Strategic Planning for Police). This network aims to fight against the distribution sponsored trade of child pornography.

One solution proposed by the network CIRCAMP is to enable blocking access to certain websites. For the network CIRCAMP " blocking access to images of child exploitation as a preventive measure and according to national legislation, the introduction of Child Sexual Abuse Anti Distribution Filter (CSAADF) ".

However, a paragraph in the network's website has boosted CIRCAMP MEPs. This paragraph discusses the possibility of a blockage of a domain name (with le risque de surblocage que cela pourrait entraîner). En effet, le site de Circamp prévoit ceci :

"The CSAADF focuses on blocking on domain level. We believe that this places the responsibility for the content of any domain or sub domain in the hands of the domain owner or administrator. If a domain owner places, accidental or willingly, child abuse material on his/her domain, and it is blocked by the police, the blocking will not be lifted until the material is removed. We believe that this will motivate content providers on the Internet to actively make an effort to avoid files with child sexual abuse on their systems/services. CIRCAMP believes that the police should not function as a moderator of Internet services, removing or blocking out parts of the available content, like an image. One image of a child in a sexual exploitive situation on a domain can/will result in the whole domain becoming unavailable in participating countries until removed. It is our experience that some domain owners/administrators are indifferent to the content they are providing access to, and there is a need for them to make informed decisions as to what content they are distributing and making available on the Internet."

En réponse, Neelie Kroes, Commissaire européenne en charge de la société de l'informatique, répond le 17 janvier 2011 de la manière suivante :

" The Commission provided funding from the Safer Internet programme to the CIRCAMP project for the period 01/11/2008 to 31/10/2010.

The overall aim of this project was to stimulate organised and extensive cross-border exchange of best practice between law enforcement agencies in the fight against production, online distribution and access to child sexual abuse material. In particular, it aimed to share the use of a filtering system. In each country where the tool is implemented, the list of web sites hosting child abuse images is drawn up by national police forces in accordance with the requirements of national law.

The CIRCAMP project did not promote a specific level of blocking; this is decided by the country in question, at domain level in some countries, in others a combination of domain and URL blocking . The project did not have as its objective to put in place a general obligation to monitor, nor have companies felt obliged to put any such system in place as a result of the work of the project. The Commission is not responsible for the CIRCAMP Web site and so it would be inappropriate to comment on its contents.

The Commission has tabled on 29 March a proposal for a Directive on combating the sexual abuse, sexual exploitation of children and child pornography. Child pornography is first and foremost the depiction of an awful crime against a child, and dissemination of child abuse images on the Internet is a gross violation of the child's privacy. A mong a number of measures to combat and disrupt it, The Commission has Proposed Member States should "That, subject to appropriate" Legal Safeguard, take Measures to Obtain The blocking of access by Internet users in Their Territory to web pages containing child pornography. The choice of tools to Meet Technical restes this obligation with member States. "

Thus, the response recalled the wish of the European Commission to adopt a Directive providing for the possibility for member states to proceed with the blocking of child pornography.

Source: Written response by Neelie Kroes Marietje Schaake, Sophia in't Veld, Alexander Alvaro and Nadja Hirsch, 17 January 2011

Author: Benoit Tabaka - http://tabaka.blogspot.com

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Image rights: responsibility to cascade the use of a photo purchased on the Internet

Now the Syndicat des transports d'Ile de France wishes to carry out a publicity campaign for his service Noctilien. He contacted an agency (Agency Republic), the latter deciding to ride the Fotolia image bank for an image (the photographer Lawrence H.) starring Florinda B. to illustrate this campaign. Discovered in January 2008 this practice, the model decided to assign the STIF, which decided to invite her agency in the case Republic, which itself decided to intervene Fotolia, which in turn decided to bring Tribunal to the photographer.

This little world thus found himself before the Tribunal de Grande Instance of Paris has been called to try to unravel the thread of this case and establish the responsibilities of each stakeholder.

first point: there been an infringement in the image of the model?

Florinda B. " said to be a model full time since June 2007 after being" model and host events for five years, "and agreeing to the request of Lawrence H. December 13, 2006 participate in a photo shoot in order to a possible exploitation for commercial purposes, the photographer who had previously indicated by mel, placed in evidence, he worked for an online image bank, and especially for the Fotolia website ".

In October 2007, having learned that the photographs were available on Fotolia, it send the photographer an email asking him to join her for " see the whole contract and money (he was) if (he) have sold (her) pictures" which the latter replied on January 5 2008 in these terms: "I wish I could see you and solve the problem of your photos .

The Court observes that" neither party does that there was an agreement on the deal and the price between the model and photographer, while the authorization to use the image for commercial purposes must be explicit and precise and, where applicable, indicating the uses permitted or proscribed by the model, the geographical scope and intended the maximum duration of operation, and in any event, the method or the quantum of compensation in part-cons of the exploitation of rights granted . "But for judges:

" It is principle, particularly with regard to commercial usage of the image of professional models, such authorization is expressly limited in time and the burden of proving the existence and scope of the authorization granted based on the fact that public use of the image in question. "

second point: the responsibility to" cascade ".

First, the Court considers that is primarily responsible STIF , namely the advertiser has made use of the photograph in question:

"Having made a public and commercial exploitation of the photograph of the applicant without a valid authorization from the interested there's no power, STIF necessarily-it was in good faith, violated the rights of the latter and committed leader of this responsibility on the basis of Article 9 of the Civil Code. "

Nevertheless, Agency Republic has a responsibility , since it is bound to give a statement regarding the supply of cliches:

"It is right that the STIF seeking the full warrants society REPUBLIC, communications agency, held in respect of an obligation of result, which involves providing its own advertising client to a cliché purpose for which it was intended "

However, the Agency was provided with Fotolia. What about the Fotolia responsibility vis-à-vis Agency? It is also chosen, judges dismissing the application status to the host Fotolia .

In his defense, Fotolia shows " she is not responsible for the content of this platform, merely to allow photographers to store their products in order to grant to individuals or entities licensed Operating on these works, serving only procuring liability "and therefore it must have the liability regime set up under section 6.I.2 in favor of" hosts ".

The Tribunal is not this review:

"This plea will be rejected, the company FOTOLIA LLC are in no way, in this case, a host of websites, which only apply the statutory provisions invoked, but a communication service public online, that is, a site itself ("Website Fotolia" is written in its general conditions of use), which defined its purpose, the configuration of this site terms and license fees it imposes on their photographers and potential clients through a contract of adhesion it has only drawn against each other. It will be particularly noted that it has established a system of credits, payment of the price of photography ranging from 0.83 to 4.15 euros depending on the file format and the license chosen, it explains (his play 18) that the files acquired "may be used by the client without limit of time or number of broadcasts for uses as diverse as: advertising, the achievement of business records [...]", and photographers interested receive, for each file sold, a commission of between 30 and 61% of the selling price.

Having put online for downloading for commercial use photographs of the applicant without a valid authorization of the latter, the liability shall, as such restraint. "

therefore " right to find that the agency has acquired REPUBLIC photography
issue by downloading the Fotolia website seeks contractual guarantee full company FOTOLIA LLC ", the judges felt that the terms of the general conditions of the Fotolia website does not allow the site to avoid liability in this regard.
And
what about the photographer? The Tribunal considers that:

"given the contracts that bind with photographers, and under which Lawrence H. necessarily made since sent him a document purporting to assert authority to operate the image of the plaintiff, the company FOTOLIA LLC will turn fully secured by the convictions against her. "

Finally, Judges condemn so STIF Florinda B. to pay the sum of 1,000 euros in moral damages and 2,500 euros for the financial loss. In parallel printer, a judge sentences Agency Republic to ensure STIF payment of such sums , also condemns Fotolia Républic Agency to ensure the payment of such sums and ultimately condemns the photographer to ensure the site Internet payment of such sums.

Source: TGI Paris, 17ech, 10/11/2010, Florinda X v. Syndicat des transports d'Ile-de-France, SARL Fotolia Fotolia LLC Company, LLC and Lawrence H. Republic (Unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com

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The European Commission provides an inventory filtering in Turkey

A Dutch MEP was commissioned in November 2010 the European Commission to provide the number of websites currently blocked by the Turkish authorities and In particular, the number of websites blocked because of crimes of conscience.

January 19, 2011, the European Commission said que :

"In May 2007, Turkey enacted Law No. 5651, entitled "Regulation of publications on the internet and suppression of crimes committed by means of such publication". In January 2010, the Report of the Organisation for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media on Turkey and Internet Censorship found that from the enactment of this law until December 2009, access to approximately 3 700 websites has been blocked in Turkey ."

A la demande de la Commission européenne, l'Autorité turque des télécommunications a fourni au mois de décembre 2010 un état des lieux des raisons du blocage :
 

" 25.55% sexual abuse of children

1.89% gambling

1.75% providing venues for gambling

0.04% facilitation of drugs

0.24% obtaining substances dangerous for health

1.13% prostitution

0.05% crimes against Ataturk

69.35% obscenity "

Source : Réponse de la Commission européenne à Philip Claeys

Auteur : Benoit Tabaka - http://tabaka.blogspot.com

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Video Game: Ferrari arches and cons GTA4 GTA San Andreas

Ferrari found that in the video game Grand Theft Auto 4 (GTA4), produced by Take Two Interactive, appeared a car model called Turismo built by Cave, who, she repeated the characteristics of the Ferrari 360 Modena on which it claims rights under intellectual property designs.

Ferrari did make findings of purchasing the three versions of the game in Fnac stores, Micromania Games and ABC as well as findings on the websites operated by companies and Fnac Direct Micromania. She also arranged for a seizure of counterfeit goods at headquarters company Take Two Interactive France that sells the game in France.

In March 2009 she was summoned before the Tribunal de Grande Instance de Paris Companies Take Two Interactive Software Inc. and Take Two Interactive France and their retailers: companies and Fnac Fnac Paris direct Micromania and Micromania France, ABC Games International.

Ferrari accused them of infringing acts of its car model 360 Modena on the basis both of Book V as that of Book I of the Code of intellectual property. She also considered that the companies have committed separate acts of unfair competition because the game resumed, in addition to characteristics of the Ferrari 360 Modena, other items referring to the universe as a Ferrari logo of a horse sitting in a patch reversed, writing the name of the graphic showing Turismo Ferrari and even the name referring Grotti Ferrari.

Finally, Ferrari urged action against the defendants for damage to its image as the car is integrated Turismo "game violent and vulgar to which it does not wish to be associated. Moreover, the horse sat down and name cave in English means shabby return a degraded image of the Ferrari company . During the procedure, Ferrari decided to extend its action also overlooked the game GTA San Andreas " showed, again under the name Turismo but with a crest depicting a rabbit standing in another of its registered design the Ferrari F40 .

Regarding the existence of intellectual property rights, the judges of the High Court are that:

"This vehicle protected by design law or by the copyright can not be considered as counterfeit when the particular combination of characteristics that he claims is reproduced.

Regarding the model of the Ferrari 360 Modena, the judges felt that " in this case, if it can be assumed that the front of Turismo takes most of the characteristics of the front of the 360 Modena (but do not constitute a slavish copy), it should be noted that the back is very different (rectangular headlights, central air vents, two central exhaust) and that in particular the round lights specifically attached to the image of Ferrari, are not included "and thus" it is clear from all of these elements there are commonalities between the two vehicles involved, but that, however, the vehicle Turismo that has a particular background very different from the Modena 360 does not reproduce the combination of decorative elements that gives it its own character and originality so that counterfeiting is not characterized, each vehicle having a distinct physiognomy . "Similarly, judges believe that there is no infringement of the F40 model.

the field of unfair competition, the judges have a different approach . They note that:

In the game GTA 4, the company is on Ferrari the vehicle in question, the presence of a logo depicting a horse sitting in a patch overthrown and de Turismo graphics with the bar of the T extending over all the letters in the word. Finally, it argues that the name Grotti attributed to the manufacturer's name evokes Turismo Ferrari.

It is undisputed that the Prancing Horse is often represented in a shield is emblematic of the Ferrari company and it enjoys the reputation acquired by sports cars and racing brand.

It is also undeniable that the design chosen for the word Turismo is very similar to the Ferrari with the top bar of the first letter extending the entire word.

The horse sitting, graphic de Turismo and the Italian sounding name Grotti, associated to a motor vehicle sports with certain characteristics in common with the Ferrari car, can only encourage the player to make a comparison between the Turismo and the Modena 360.

So while other automakers have chosen a horse (Ford Mustang, Porsche) to symbolize the power of their engines, the plurality matched and evocative elements of the Ferrari lead the player to retain only one vehicle: the Ferrari model which appear closest to the vehicle in the game this Turismo

And thus they conclude that:

These links or associations do not cause any irony or derision from the players and they see only that they are thus proposed the virtual driving a Ferrari prestigious vehicle under cover model turismo.

So far from having a parodic purpose, reconciliation with the universe Ferrari intended to confer Games an additional interest of offering players the chance to drive them to assimilate Modena 360 or F40, which provides a commercial advantage to operators of these games.

Also, it is necessary to admit the existence of wrongdoing to the detriment of parasitism of the Ferrari company

Regarding the damage to the image, the Court observes that:

The GTA games suitable for adults are scenes of violence or sexual nature with prostitutes or strippers.

According to the European system Information on games PEGI, the game GTA4 is for adults because of the presence of violent scenes, the reference to drug use and the use of coarse expressions and play GTA San Andreas because of the presence of scenes of violence and the use of foul language.

But as has been pointed out above, the players make a link between models Turismo and Ferrari vehicles so that they are associated with particularly violent world of GTA games, cons the will of the Ferrari company.

These games have been criticized favorable as they are described as hiding a cultural satire, violent, intelligent, profane, endearing, obnoxious rich and playful, profound and convincing (New York Times), whose beauty and richness of the decorations are particularly highlighted (Direct evening).

Nevertheless violence is undeniable, and only the Ferrari company can decide whether to associate the image of its products to such a universe. Moreover, the fact that its vehicles can be linked against his will to violent episodes could not be opposed.

The parodic nature of the game does not exclude the fault since the presence of vehicles with reference to the universe Ferrari aims to obtain a commercial advantage to the producer of the game by arousing the interest of the players by the prospect of driving vehicles prestigious plaintiff.

Finally, the Tribunal de Grande Instance de Paris believes that corporations Take Two Interactive Software Inc., Take Two Interactive France, companies and Fnac Fnac Direct, Micromania and Micromania France, ABC Games International in France by selling games GTA 4 Andreas and GTA have committed wrongful acts of parasitism and have damaged the image of the products of the Ferrari company.

He condemned them jointly and a total of 100,000 euros in damages. He enjoined, under penalty of 2000 euros per day of delay per game, Take Two Interactive to stop the marketing of games and GTA4 GTA San Andreas with the contested elements by Ferrari and disseminate on its website or through d an update of the game to remove a patch:
- Game GTA4 references to sit a horse, after Grotti and a brand whose initial letter is shooting on the following letters in the style of Ferrari logo associated with the model Car Auto Turismo
- the game GTA San Andreas references to a nose and lip after Grotti associated car model car Turismo.

Source: TGI Paris, 3ech, 25/11/2010, Ferrari SPA v. Take-Two Interactive Software Inc., Take Two Interactive France, Micromania, France Micromania, ABC Games International, Paris FNAC and FNAC Direct (unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com

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The European Commission believes that the mechanism HADOPI complies with European law

Asked by a Dutch MEP, the European Commission returned 14 December 2010 on the adoption and implementation by France of the web laws and the possibility for a user to see his internet access be cut after two warnings (called principle of "Three Strikes Out").

In its reply given by Neelie Kroes, European Commissioner responsible for Information Society, the European Commission provides the following: First

, la Commission Would Like to recall thats the Regulatory Framework for electronic communications AS AMENDED in 2009 That Provides Measures taken by Member statement regarding end-users' access to or use of, services and applications-through electronic communications networks "shall respect The Fundamental Rights and Freedoms of natural persons, as Guaranteed By The European Convention For The Protection of Human Rights and Fundamental Freedoms and General Principles of Community law. Any of these measures regarding end-users’ access to, or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process.

The French model (i.e. HADOPI or the ‘Three-Strike law’) was discussed between the French authorities and the Commission on several occasions. In the absence of any complaint and based on the information currently at its disposal, the Commission has no grounds to believe that the French scheme is contrary to EC law .

The French highest jurisdiction — the Constitutional Council — expressly recognised in its decision of 10 June 2009(2) that access to the Internet nowadays is part of the fundamental freedom of expression and communication to the extent that Internet services allow participation in democratic life and the expression of ideas and opinions. As it touches upon a fundamental freedom, Internet access can only be suspended through a decision of a judicial authority.

Finally, the Commission is not aware of any attempt from the French authorities to export their national approach to copyright enforcement to other Member States.

The existing acquis does not impose any ‘Three-Strike rule’ or graduated response systems but is flexible to allow different EU countries to have different approaches, while fully respecting fundamental rights, freedoms and civil liberties. In this respect, the text of the Anti-Counterfeiting Trade Agreement (ACTA) is fully in line with the EU acquis.

La Commission européenne apporte ainsi deux précisions. Tout d'abord, et en l'absence de toute plainte ou recours devant les instances communautaires, il apparaît que la législation française demeure compatible with Community law. Then, in the Commission, France would not seek to extend his approach to the protection of intellectual property rights in other member states.

Source: Written response by Neelie Kroes to Laurence Stassen JAJ, December 14, 2010

Author: Benoit Tabaka - http://tabaka.blogspot.com

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An assignment of copyright for an application does not automatically Iphone and Ipod Ipad

A graphic created in 2007 a little character named "Carl". This affects society Awyse character who is an expert in the program for iPhone applications. In September 2009, the designer concluded with the company Awyse a "contract control and assignment Copyright on a work multimedia composition "on the character Carl and a multimedia work of composition. Meanwhile, the company Awyse concluded with a developer a contract for the transfer of copyright on a" multimedia application (software) dedicated to the iPhone based on the scenario "Carl" . This application

Talking Carl "is sold from December 8, 2009 on iTunes and the subject, April 30, 2010, from 598,150 downloads priced at $ 0.99.

Noting the operation of the application "Talking Carl" on Apple, the designer asked on February 2 2010 at the company to stop Awyse can download this application to products other than the Iphone. Noting in May 2010 the continued marketing of the application on the iPod and iPad, the designer decided in August 2010 the company assigned Awyse.

By decision dated November 16, 2010 after finding protection under the copyright of the character "Carl", courts have analyzed - under the lease - if the company Awyse had committed acts of counterfeiting.

For the court:

Under Article 6 of the "commission contract and the transfer of copyright on a multimedia work of composition "concluded September 17, 2009 between the company and Awyse Mr. X, it has assigned its rights, reproduction, representation, use, distribution, modification, translation and incorporation on the character Carl and the multimedia work "exclusively and solely to the creation, marketing and use of software on smartphones." In addition, Annex 3 of the contract "scenario and conditions Use "iPhone is a phone and given the scenario described functionality.

The company maintains Awyse that IPAD and the Iphone are smartphones because they can function with wifi enable phone and that the restriction to the smartphone is an error the editor of the contract.

It does not challenge the definition of the text given by the applicant, ie a smart phone, nor the fact that Apple allows its user to listen to music. The mere fact that in view of the article of August 18, 2010, from the site \u0026lt;01net.com> there is a Chinese gadget that turns into a phone and iPod with 150 prototypes have been used not only to establish that an Ipod, which is not a phone and has various technical features of it, is under contract smartphone. Indeed, following the reasoning of the company Awyse, any object with a gadget like a phone then it would be strictly interpret the contract is law between the parties and not to denature.

also result if the evidence in the debate that Mr X had knowledge downloading the application on iPod, it is not sufficient to characterize its consent to extend the contract of the assigned rights of as he complained of the inadequacy of technical suppor t.

It is not disputed by the defendant company that the marketing of the iPad, computer with a touchscreen, began May 28, 2010 so that the contract of September 17 could provide this support.

The defendant company, which fails to generate debate on its contract with the company Apple, do not produce proof of the impossibility to prohibit the purchase by the consumer application to support ipod or iPad. Indeed, the general conditions of sale on Itunes it produces, and which indicate that products can be stored on different devices, aimed at potential buyers. However, it follows the "developer's guide" to Itunes (version September 2009), paid to the issues by the applicant, who submits an application can select the carrier and so, therefore, exclude some.

Accordingly, the Court considers that the company has committed acts of infringement by allowing the downloading of the application on the iPod and the iPad, while the creator had not authorized this use on the Iphone.

To assess the damage, the judges notes that "in view exchanges between buyers paid pursuant to the debates, some of them expressed their dissatisfaction because of its lack of compatibility with some models of iPod . They assess the damage so the author's moral up to 8000 euros.

In addition, the Court prohibited the company from exploiting the Awyse graphic work "Carl" on iPods and media Ipad under penalty of 1,000 euros per day of delay.

This classic solution can again emphasize the importance, in any contract of assignment of copyright to specify the purposes for which the exploitation rights are assigned.

Source: TGI Paris, 3ech, November 16, 2010, Yann X v. SARL Awyse and Simon Y.

Author: Benoit Tabaka - http://tabaka.blogspot.com

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SFR must pay 20,000 euros for not having restored Internet access

Such is the financial penalty imposed recently by the local court of Vienna against SFR and that was upheld by the Court of Appeal Grenoble. In this case, by court order dated December 20, 2007, the local court of Vienna had ordered the company Neuf Cegetel (SFR now become) to restore phone service and Internet access supported by a particular . The judge ordered

this recovery within eight days after the notification of cases and this under penalty of 100 euros per day of delay. On April 25, 2008, the individual decides to assign Neuf Cegetel before the local court of Vienna to see the penalty be liquidated.

By decision dated January 12, 2009, the local court was hearing a plea of incompetence by the Neuf Cegetel and therefore referred the consideration of this objection before the District Court of Vienna. Neuf Cegetel had considered that only the High Court could rule on the liquidation of the penalty.

By decision dated June 19, 2009, the District Court of Vienna declared the local court of Vienna jurisdiction of this dispute. He thus rejected the plea of incompetence and said that the decision was made so as contradictory and subject to appeal. On May 28, 2010, SFR decided to form a "contradiction" against the ruling saying that only the High Court of Vienna could hear the case. 8 November 2010, the Court of Appeal rejected the appeal of Grenoble since no remedy is opened against the ruling on the court has jurisdiction.

The consequence of this rejection for SFR was not neutral. Indeed, in the meantime, J. proximity of Vienna had rendered its decision dated April 26, 2010 liquidating the penalty to the tune of 20,000 euros . There is therefore no doubt that the implementation of the measure ordered by the judge in 2007 has probably not been very fast ....

Source: CA Grenoble, 08/11/2010, SFR v. Christopher X (unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com

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In assessing the misuse of mobile phones and email solutions

An employee had been the subject of dismissal for serious misconduct, the employer alleging misuse of professional tools at its disposal (business email and mobile phone). She decided to challenge his dismissal before the Labour Court of Valencia, who by order of January 20, 2010 said the dismissal based on a real and serious but not grave misconduct and ordered his former employer to pay various allowances. The employee decided to appeal this decision holding that the dismissal was not based on fault.

The employer blamed the worker for two mistakes: the misuse of corporate email for personal use and misuse of mobile phones available to him.

Regarding the misuse E-mail, the employer blamed the worker for having sent an email to his supervisor on "One would need a leader like him," accompanied by an attachment reproducing various remarks about the Immigration attributed to

Australian Prime Minister. The employer considered that this message was " contrary to its values and its image and at the same time denounced the use of corporate email for personal . For its part, the employee explained that " accidentally forwarded it to his supervisor the message was intended for an acquaintance, that the employer does not dispute, moreover .

The Court of Appeal ruled that " reality of the error is determined by the formulation transmission of the message which is: 'Hello Jean-Jacques, These are the thoughts of my father. Everybody's promised land. " .

Also:

"Whereas on the one hand that nothing in the rules of the company prohibits employees from using their work email to send or receive personal messages ;

he can not therefore be accused of having an employee to follow the third message she had received from his father

it is irrelevant in this case as a result of an error, the message has been sent to the business address of his supervisor, while the latter is in no way concerned or affected by the message "

And even if the employer" judge message content intolerable or outrageous and contrary to its values, the fact remains that despite the error transmission, it is a private message that it can not state . "Under these circumstances, the judges felt that the complaint made by the employer is not serious.

Regarding the misuse of mobile phones, the employer says " the phone bill was $ 534.77 euros for the month of August 2008 and estimated that this sum, more than 230 euros' correspond to calls Personal "without however producing any statement corrobant his assertions.

However, the employee admitted using his work phone" during his movement in Egypt in August 2008 as has been obliged to join his ailing father . "For the judges," this relates in any event be serious and urgent cases in which the ; Rules of Procedure authorizes the use of the phone business for private "

importantly, the Court observed that the employer had not provided SIM card relating to the subscription business phone, the employee was forced to to itself the acquisition of a mobile phone for the price of 189 euros.

Therefore, the judges believe that

"Whereas a business that requires an employee to purchase an equipment for professional use, is unwelcome to say the least to blame the same employee, personal use unencrypted moreover, its telephone subscription.

The Court of Appeal considers that the dismissal was without any serious cause. It condemns the employer to pay 45,000 euros to the employee unfairly dismissed and the reimbursement of unemployment benefits paid for 6 months.

Source: CA Grenoble, 22/11/2010, Catherine X c / SAS BCBG Max Azria Group (unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com

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Fake cashier's check: judges no longer hold the responsibility of the bank

Fraud in Nigeria. It is by that name that often are referred to these frauds have been developing for many years on the Internet. The goal is simple: to convince a user to send the scammer (or his accomplices or mules) cash via a non-traceable (eg Western Union). Afterwards, the means employed are multiple: to believe that one has received a large inheritance and that one needs help to get him out of the country itself as the seller of a vehicle and get the victim's part of the proceeds of the sale before it takes possession of the vehicle, etc. ... The imagination is limitless fraudsters.

Faced with these practices, the victims were taken to sue. Not against the crooks, but against their bank. Why? For all victims, the bank had breached its obligations and duties (duty to advise the duty to inform, etc..) Leaving their clients and withdraw cash and send it to a perfect stranger at the other end of the world .

During the year 2010, Many judges have had the opportunity to address this problem. We'll try to summarize the answers here. They are rather simple: the judge is receiving less and less responsibility for the bank compared to the years 2006 and 2007 that such responsibility was most often chosen.

May 5, 2010 - Court of Appeal of Besançon
A user sells a vehicle at a price of 1000 €. He then receives a check for € 7,500 to file on behalf of 25 April 2006. On April 27, 2006, he recites the sum of 6,500 € for transfer to the "pseudo-carrier" and € 1,000 for the buyer decides to cancel the purchase. Both amounts were transferred by Western Union. On May 3, 2006, the check turns out to be outstanding.

The Court of Appeal of Besançon:

"It should be emphasized the very particular circumstances of the transaction that should have prompted a special vigilance because its purchaser named Curtis Clarke, owner of an e-mail in the United Kingdom, sent him a check to a third shot at a French bank in this case the Post Office and had planned to incur costs equivalent transport more than six times the purchase price, on behalf of a shipping agent for its established in the United States. Registration in immediate account of a bank check is a use which does not bind responsibility of the banker, if not provided, except for lack of characterized it.

It also appears that the individual made the withdrawal of this sum in full two days after depositing the check at least suspect, then it does not justify any particular urgency to undertake such transaction, the bank, in the absence specific information, had, April 27, 2006, no legitimate reason to oppose it and it is clear that this is solely because of the rush on which it can not be explained as the individual found himself trapped by the scam of the buyer. "

The liability of the bank is not accepted.


May 6, 2010 - Court of Appeal of Paris
A person shall sold his car at a price of 5500 €. It receives from a Dutch buyer a cashier's check in the amount of 9000 € drawn on an Irish bank. It cash that check December 31, 2004. On 12 January 2005, she withdrew € 3,500 for pay that amount by Western Union to a person posing as the carrier. On February 4, 2005, Société Générale was informed that the bank check is a forgery and automatically debit the bank account.

The Court of Appeal of Paris:

"the bank that receives a cashier's check that is not grossly falsified is not bound to a particular duty of care, it is not established as the date the check was presented, the attention of banks have been attracted to suspicious transactions made on behalf of the Irish bank, the newspaper article being placed in evidence as of May 2005, in contrast, the recipient of the check should have been alerted by the modus operandi for the least strange "

The liability of the bank is not accepted.

May 6, 2010 - Court of Appeal of Aix-en-Provence
A surfer is selling his bike for the price of 2700 €. A buyer sends a cashier's check in the amount of 7,900 € drawn on a UK bank. On October 15, 2005, he cashes the check. On October 27, 2005, he recites the sum of 5,200 € for send to the buyer via Western Union. On October 29, 2005, the check returns unpaid.

The Court of Appeal of Aix-en-Provence:

"Whereas if the check in question was credited to October 19, 2005 (value date) and subject to collection, it appears that the Caisse d'Epargne has failed in its obligation to provide information and advice to his client to make a cash withdrawal of 5,500 euros October 27, 2005 while his account was at that time the debtor ; due to reversal of the check against the flow for 7900 euros (date Value October 26, 2005) and that he did not enjoy any overdraft.

Whereas the Caisse d'Epargne, which in his professional capacity necessarily know what type of widespread fraud and failed to alert the client about the possibility of being swindled, breached its duty to warn "

The liability of the bank is successful.

June 10, 2010 - Court of Appeal of Rouen
An Internet offers to sell his car on the internet at a price of 8600 € . It becomes contact with a buyer who lives in the United Kingdom, which sends a cashier's check in the amount of € 13,000 including € 4,400 for transportation and delivery. On December 11, 2006, the check was cashed. On December 15, 2006, he was passing his account the sum of 4,400 € for the pseudo-carrier pay via Western Union.

The Court of Appeal of Rouen:

"A bank is under an obligation of vigilance, as such, it must check the formal validity of a check presented for payment.

(...)

it is not established that the Caisse Régionale de Crédit Agricole Mutuel or adherent of the French Association of Banks, which would have alerted its members about the scams carried out by means of bank checks from Bank of Ireland and has was recipient of the information of the same order issued by the RTC, as appropriately, the trial judge noted that it was on the RTC of fraud specific to that bank;

(...)

The individual did not characterize failure of the bank to his diligence, his damages resulting from its own imprudence "

The liability of the bank is not accepted.


November 4, 2010 - Court of Appeal of Pau
A user comes into contact with a certain Jennifer Smith, who appears as owner of a textile company in London who need to find someone capable to collect payment on behalf of its European customers. Thus, the user checks cashed , is retained a 10% commission and remitted the remaining money to Jennifer Smith by Western Union. May 2, 2007, deliver a first check of 7000 € issued by Bank of Scotland. May 24, it shall withdraw € 6300. June 18, she is informed that the check was a forgery.

The Court of Appeal of Pau

"In any event, the banker does not interfere in the affairs of his client and Ms. X did not tell the banker the conditions under which the check had been delivered. According to the exchanges between Mrs. X and Miss Smith, on the net that Mrs. X has agreed to undertake this transaction without asking for collateral, it has taken no information on his interlocutor and the textile company. She did not worry when his interlocutor who normally lived in the United States asked him to send the warrant in Nigeria. No fault can be imputed to the bank.

(...)

Madame X indicates that the bank did not meet the deadline of Article L.131-49 of the Monetary and Financial Code and has conducted a cons improper award by doing more than a month and a half after the check presentation to the award against the check issue. However, the check in question was not issued in France and it was not payable in France. This section shall not apply to this case. There is no time cashing checks payable to individuals overseas. "

The liability of the bank is not accepted.


November 8, 2010 - Court of Appeal of Colmar
On 7 May 2007, a visitor filed a € 5,500 check into his bank account and made various withdrawals to make transfers via Western Union. Subsequently, the check turned out to be false.

For Court of Appeal of Colmar:

"If the bank is obliged to check the formal validity of the check for collection, it can not substitute its customers to prevent them from having the funds before the account is credited.

(...)

S he findings show that it has demonstrated very naive in agreeing to send money through Western Union so that the consequences of this mode of Payment is immediate. The only identity of the beneficiary of the transfer was enough to make suspicious. The corresponding internet name is Nicholas Ellis said while the transfer was made on behalf of Marcus Smith. The Caisse d'Epargne had no power to prohibit the availability of funds prior to cashing the check. ; If this type of scam is common, the appellant can not make comparisons with other French banks because the check was drawn on a bank really existing. "

The liability of the bank is not retained .


And as regards the responsibility of the postal bank or Western Union?

April 26, 2010 - Court of Appeal of Douai

A person address via Western Union money to a knowledge based in the United Kingdom. It appears that the money is withdrawn by a person, not being the legitimate beneficiary.

In the Court of Appeal of Douai:

"The parties are bound by a contract Depository as defined by sections 1921 and 1937 of the Civil Code. Under these laws, the Postal Bank has an obligation to make the identical thing she has received that which was indicated to receive it, and it remains bound to his obligation to his client who gave him the money, even if it was not at fault, unless it is shown to be exempt from liability, the applicant has committed misconduct.

(...)

Under these conditions, in the absence of any proven fault of the applicant, the postal bank does not disclaims its responsibility as custodian funds that his correspondent was defeated on a false presentation of the beneficiary and without justification to have made audits ID required.

The liability of the bank is successful.

July 8, 2010 - Court of Appeal of Rennes
A user decides to buy a vehicle on the internet and choice s' stops on an Audi at a price of € 13,900. On February 18, 2005, he made a first transfer of an amount of 4320 € to the vehicle owner. On February 22, 2005, he sent the sum of 10,080 € via Western Union to an acquaintance. But the money is withdrawn without the intervention of that knowledge. Indeed, the seller had obtained a copy of Western Union slips. The vehicle will never be delivered.

The Court of Appeal of Rennes

"The contract between the Postal Bank and Mr. X is a repository for funds transfer and delivery to a recipient residing abroad. And by applying Articles 1932 and 1937 of the Civil Code, the trustee is required to return the identical thing deposited, to the person who confided her or him in whose name the application was made or one that has been shown to receive it.

Under these laws, the Postal Bank shall continue its obligation to refund to the customer who gave him the money, even if it was not at fault, except to establish the responsibility of the applicant or an officer thereof. She is also holding an obligation of means to check or have checked by his partner who is the recipient of the award of funds.

(...)

supply by Mr. X of the information on the packing slip does not in itself the desire to circumvent the conventional rules, but it allowed for cons writing and the presentation of a receipt slip for all the particulars necessary to the delivery of funds.

Nevertheless, the postal bank as custodian is obligated to ensure the delivery of funds, through its partner, the beneficiary designated by the sender, by performing the verification of his identity. The identity card presented is certainly not that of Mr. Y and the control of concordance between the beneficial and that the bearer of identity card presented was clearly not made.

The reckless misconduct of Mr. X, but also the culpable negligence of the Postal Bank contributed to the remittance issue, each party committing half of its responsibility "

The liability of the bank is successful in part.


Key points of all these decisions? It is clear that the judge is increasingly reluctant to hold any responsibility for the bank. If the bank is under a duty of information and advice, it is also required an obligation of non-interference in the affairs of the account holder. Nevertheless, in tool used to conduct the transfer at issue, it appears that the few judges who were asked to rule on the subject have accepted the responsibility of the transfer tool in that it has breached the obligation to verify that the rightful recipient of funds was the person presenting themselves at the counter.

Sources:
CA Besançon, 05/05/2010, Anthony X v. SA Caisse d'Epargne de Franche-Comte (unpublished)
CA Paris, 06/05/2010, Societe Generale v. Rita X (unpublished)
Aix-en-Provence, 06/05/2010, Bernard X c / Caisse d'Epargne SA Provident Côte d'Azur (unpublished)
CA Rouen, 10/06/2010, Benjamin X v. Regional Bank of Credit Agricole Normandie Seine Mutual (unpublished)
CA Pau 04/11/2010 Veronique X v. Regional Bank of Credit Agricole Pyrénées Gascogne mutual (unpublished)
CA Colmar, 11.08.2010, Marie-Claire X c / Caisse d'Epargne d'Alsace and Welfare (unpublished)
CA Douai, 26/04/2010, SA Banque Postale v. Cindy X (unpublished)
CA Rennes, 08/07/2010, SA Banque Postale v. X Bruno (unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com