Today, the French Conseil Constitutionel (supreme jurisdiction on constitutional issues) answered a question asked by the Cour de Cassation. The question concerned the constitutionality of article 93-3 of the Audiovisual communications law (July 29, 1982). The article would, allegedly, put in place a presumption of guilt contrary to articles 8 and 9 of the ECHR (by allowing to impute an infringement to an individual that is unaware of the content of the messages posted on his blog/forum, whereas in reality the infringement is committed by someone else). It was also suggested that the article is contrary to article 6 of the ECHR because it puts in place a different but unjustified treatment for different actors.
The article basically puts in place a, what the French call, ‘waterfall’ (cascade) liability regime. The article states that the directeur (or co-directeur) will be prosecuted as the main author, if the offending message was subject of ‘fixation’ before its communication to the public. If the (co)directeur cannot be found/is exempted, it’s the author. And if not the author, it’s the producteur.
When the infringement is the result of a message that was posted by an internaute (internet user, netizen, …), the (co-)directeur cannot be held criminally liable as the author, IF: (1) the service provider made the message available to the public on a spot dedicated to personal contributions (and identified as such); (2) it can be proved that the service provider did not have any knowledge of the message before it was put online; (3) he removes the message promptly when he obtains knowledge.
The decision explains that the directeur benefits of a specific liability regime (and is exempted). Additionally, ‘in the current regulatory and technological environment, the Internet allows the author of a message to remain anonymous’. Taking these two points into account, the Conseil Constitutionel decided that the article cannot be interpreted as to hold the creator of a (public) website (producteur), making available messages of users (e.g.: discussion forum), criminally liable for content that he was not aware of before it was put online. Such an interpretation would put in place a de facto ‘irrefutable presumption’ of criminal liability, which would in turn be unconstitutional.
The article itself though is ruled to be constitutional as such (the Conseil merely rejected the above-mentioned interpretation).
The full ruling, press announcement, public hearings, etc are available here.