The Crim judgment. Oct. 5, 2021 – 20-85.985 and the 2022 reform of the LCEN – an update on the responsibilities of internet and media players

https://www.courdecassation.fr/en/decision/615bea2b2cfb606bf051019e

This judgment is an opportunity to take stock of the national regulations applicable to the audiovisual sector, the press and the Internet, with regard to liability in so-called press offenses provided for by the law of July 29, 1881 on the freedom of the hurry.

It recalls that "communication to the public online" and "audiovisual communication", which both come under "communication to the public by electronic means" and the cascading liability regime of press law, do not refer to the "press audiovisual” referred to in several articles of the penal code which punish attacks similar to press offenses (incitement to suicide, attacks on the representation of the person, on minors, on the authority of the State, on judicial decisions).

Larticle 2 paragraph 3 of law 86-1067 of September 30, 1986, Léotard law, relating to the freedom of communication, noted :

Electronic communications means the emissions, transmissions or receptions of signs, signals, writings, images or sounds, by electromagnetic means.

Communication to the public by electronic means means any making available to the public or categories of public, by an electronic communication process, of signs, signals, writings, images, sounds or messages of any kind. which do not have the character of private correspondence.

Audiovisual communication is understood to mean any communication to the public of radio or television services, regardless of the methods of making them available to the public, any communication to the public by electronic means of services other than radio and television and not falling communication to the public online as defined in article 1 of law n° 2004-575 of June 21, 2004 on confidence in the digital economy, as well as any communication to the public of on-demand audiovisual media services .

Article 93-2 of Law No. 82-652 of July 29, 1982 on audiovisual communication provides:

Any service of communication to the public by electronic means is required to have a director of publication.

When the director of publication enjoys parliamentary immunity under the conditions provided for by article 26 of the Constitution and by articles 9 and 10 of the protocol of 8 April 1965 on the privileges and immunities of the European communities, he appoints a co-director of the publication chosen from among persons who do not benefit from parliamentary immunity and, when the communication service is provided by a legal person, among the members of the association, of the board of directors, of the management board or the managers according to the form of the said legal person.

The co-director of publication must be appointed within one month from the date from which the director of publication benefits from the immunity mentioned in the preceding paragraph.

The director and, possibly, the co-director of the publication must be of legal age, have the enjoyment of their civil rights and not be deprived of their civil rights by any judicial conviction. By way of derogation, a minor over the age of sixteen may be appointed director or co-director of the publication produced on a voluntary basis. The responsibility of the parents of a minor aged sixteen or over who has been appointed director or co-director of publication cannot be engaged, on the basis ofarticle 1242 of the civil code, only if he has committed an act likely to engage his own civil liability under the conditions provided for by the law of July 29, 1881 on the freedom of the press.

All legal obligations imposed on the director of publication are applicable to the co-director of publication.

When the service is provided by a legal person, the director of publication is the chairman of the management board or the board of directors, the manager or the legal representative, depending on the form of the legal person.

When the service is provided by a natural person, the director of publication is this natural person.

and article 93-3 of the same law: 

Failing that, the author, and failing that the author, the producer will be prosecuted as the main author.
When the director or co-director of the publication is implicated, the author will be prosecuted as an accomplice.
Any person to whom article 121-7 of the penal code is applicable may also be prosecuted as an accomplice.
When the offense results from the content of a message sent by an Internet user to an online public communication service and made available by this service to the public in a space for personal contributions identified as such, the director or co-director of publication cannot be held criminally liable as the main author if it is established that he had no actual knowledge of the message before it was put online or if, from the moment he became aware of it, he acted promptly to remove this message.

Article 1 of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy provides: 

Communication to the public by electronic means means any making available to the public or categories of public, by an electronic communication process, of signs, signals, writings, images, sounds or messages of any kind. which do not have the character of private correspondence.

Communication to the public online means any transmission, on individual request, of digital data not having the character of private correspondence, by an electronic communication process allowing a reciprocal exchange of information between the sender and the receiver.

Electronic mail means any message, in the form of text, voice, sound or image, sent by a public communication network, stored on a network server or in the recipient's terminal equipment, until that he recovers it.

And

(1 of III of article 6 of the same law 🙂 

III.-1. Persons whose activity is to publish an online public communication service make available to the public, in an open standard:

a) In the case of natural persons, their surname, first names, domicile and telephone number and, if they are subject to the formalities of registration in the trade and companies register or in the business directory, the number of their registration ;

b) In the case of legal persons, their name or company name and their registered office, their telephone number and, in the case of companies subject to the formalities of registration in the trade and companies or in the directory of trades, their registration number, their share capital, the address of their head office;

c) The name of the director or co-director of the publication and, where applicable, that of the editorial manager within the meaning of article 93-2 of the aforementioned law n° 82-652 of July 29, 1982;

d) The name, denomination or company name and address and telephone number of the service provider mentioned in 2 of I.

This omission is moreover sanctioned under the visa of paragraph 2 of VI of article 6 of the same law:

“2. Is punished by one year's imprisonment and a fine of 75,000 Euros the fact, for a natural person or the de jure or de facto manager of a legal person exercising the activity defined in III, of not having respected the prescriptions of this same article.

Legal persons may be declared criminally liable for these offenses under the conditions provided for in article 121-2 of the criminal code. They incur a fine, in accordance with the procedures provided for by article 131-38 of the same code, as well as the penalties mentioned in 2° and 9° of article 131-39 of this code. The prohibition mentioned in 2° of this article is pronounced for a maximum period of five years and relates to the professional activity in the exercise or on the occasion of which the offense was committed.

“Communication to the public by electronic means” is opposed to “private correspondence” and includes “communication to the public online” and “audiovisual communication”.

Cascading liability applies to the written press, to “communication to the public by electronic means”, but not to the “audiovisual press” referred to in certain articles of the penal code for offenses similar to press offences.

Cascading responsibility: The director of publication is the first responsible, at least when he can control the publication by means of his prior fixation.

Be assisted by a lawyer specializing in press law in Paris:

Roquefeuil law firm