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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.