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The revival of the tort of internet players

Recent case law seems to confirm the revival of common law liability of internet players (TGI Troyes June 4, 2008, TC Paris June 30, 2008).

Correspondingly, the law of 21 June 2004 on confidence in the digital economy (LCEN) is ignored by the judges, even though it is the legal framework specifically intended to govern the right of the Internet.

It provides for a system of diminished responsibility benefiting hosts. They are defined by the LCEN as those that store data provided by recipients of the service. The hosts are not held liable if they do not react promptly to prevent access of data flagged as illegal, or that are obviously.

Only when a player in the internet goes beyond his role as host ceases to be eligible for this scheme privileged. This applies particularly where the host acts on the contents, such as a publisher.

Simple to state, the distinction is difficult in practice. Indeed, a host is rarely completely passive. It can for example organize content for presentation, including a profit target. In addition, the constant evolution of the power of software has increased opportunities for internet players to watch content stored.

It follows that the characterization of host is hardly relevant. The case law seems take note and return to traditional notions of tort. It is based on the triptych: Knowledge, Power and inertia.

Thus, the TGI of Troyes was sentenced June 4, 2008 the company Ebay watched because it does not "in the absence of improper use of that site." For its part, the Commercial Court of Paris condemned June 30, 2008 the same firm she had breached "its duty to ensure that its activities do not generate illegal acts." These two decisions have in common the sanction of a duty of vigilance is needed to any professional.

This motivation is basically very close to that of stopping Estelle Hallyday made by the Court of Appeal in Paris February 10, 1999. According to the Court, the host must "assume towards third parties (...) the consequences of an activity that has, intentionally undertook to perform."

Ultimately, the perpetual motion of balance between special law and common law has put things in their previous state. Judges now seem abandon the law of 21 June 2004. So

qualification fault which appears again as the key responsibility of internet players. Is thus decisive value judgments focused on the moral, social or technical behavior. The judge comes out stronger. The defense is just as important. The internet players are advised to exercise caution and vigilance, as any professional.

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Right to information and e-commerce sites: fad or ineffective?

Article L.716-7-1 of the Code of intellectual property is often presented as a major input of the Act of October 29, 2007. This article provides a right to information allowing the applicant to obtain the court orders it to third parties in dispute to provide evidence to help trace the networks involved. Including the names and addresses of suppliers and other previous holders of the products and their quantities and prices.

As a rule governing the types of evidence and on the procedure, it is applicable since it came into force October 29, 2007, even if the acts were committed before.

At a time when trade in counterfeit goods is growing exponentially by through websites, this right to information is particularly useful and is especially sites of auctions. They indeed provide services that can be used in infringing activities.

Even if these sites would claim the protection status of the host introduced by the Act on Confidence in the Digital Economy of 21 June 2004, they are required to respond to every request that the judge analyzed as justified and proportionate.

This will most often be one of readiness, on the basis of Article 770 of the Code of Procedure civil, that: "the judge of the pretrial jurisdiction shall have all powers necessary for communication, procurement and production parts."

However, it appears that this same code already offered on the basis of common law, means to achieve such a result. Indeed, both Articles 11 and 138 allowed to obtain evidence held by third parties during the proceedings. This is a straightforward application of the rule by law of 5 July 1972: "Everyone is obliged to provide assistance to justice for the event of truth. "

Should we then consider the right to information of Article L.716-7-1 as useless? It is possible to respond in the negative as applications based on this article seem to be multiplying. It should therefore be seen as the stimulating effect of lights in the fashion and that the beneficial effect it provides details about the nature of information that can be searched.

Ultimately, the effectiveness of the fight against counterfeiting has become stronger and the legislature has reached its goal.

However, the assessment by the judge likely character of counterfeiting remains decisive: it is a prerequisite for investigations. It is therefore important to make sure to gather all possible evidence before trial, including the seizure of alleged counterfeit products and any related document.

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