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The beginning of the end for unmonitored Internet forums?
Karine Solovieff, 01net., 31/05/2002 at 16:51
For the first time, webmasters have been convicted for libellous remarks that were posted in their personal forums by Internet users.
At the beginning of the week, the courts convicted two webmasters who run private sites for libellous messages that were posted in their forums. The accused are not the persons who wrote the messages, nor are they the host.
The first case, which came to court on the 27th May, saw two students who own a personal, satirical website called "ligue de protection des Scouts d’Europe" (The European Scouts protection league) challenged by the European Scouts Association (l’Association des Scouts d’Europe) over messages in the website guestbook that insulted the Association and likened the scouts to Nazis.
The Association received 0.15 euros (approx £0.10p) in damages, and last Monday the webmasters were handed a conditional fine of 1,000 euros (approx. £600) by the magistrates’ court in Rennes, Brittany.
The second case was brought by the Pere-noel.fr website against the owners of the consumer defence website Defense-consommateur.org. The presiding judge at the high court in Lyons ruled that webmasters were responsible for monitoring remarks that appeared in their forums, and found them guilty of allowing libellous messages and insults to be published. The amount claimed in damages this time is 80,000 euros (approx. £50,000).
Two conflicting case laws
These two decisions signal a turning point in French case law.
The judges ruled that the applicable law was the 1881 freedom of the press act, which stipulates that an editor of a publication can be prosecuted for both civil and criminal liability in libel cases. In the absence of an editor, it is the website manager who is liable.
However, a similar case involving the company Finance Net, which publishes the Boursorama website, finished with a quite different ruling when it was tried in February 2002. "On that occasion, the vice-president of the high court in Paris ruled that the case fell under the Internet hosts act of 1st August 2000," states legal expert Lionel Thoumyre.
This act specifies that an Internet service provider can only be prosecuted for civil or criminal liability over the content of his or her services if he or she does not take action to prevent access to the content in question after being ordered to do so by the legal authorities.
As Finance Net had removed the remarks and displayed warnings, the vice-president ruled that there had been no breach of the law.
A new "Lacambre affair" is looming
These two cases could well open a can of worms, as the majority of French Internet forums are not monitored. Forum administrators, owners of private sites with a guestbook and editors of on-line newspapers must now take note of the risks they are running if they fail to check the messages that are posted.
Benoît Tabake worries that "rather than bringing the authors of the contentious remarks before the courts, victims could instead turn their attention towards those persons who host sites on which such remarks appear. This decision could lead to another ‘Lacambre affair’ in the Internet global village."
Valentin Lacambre, director of free website host Altern.org, was convicted in 1998 for photos posted on one of the private sites hosted by Altern.org. At the time, the judge ruled that a site host was comparable to an editor and so the freedom of the press act was applied.
The fallout from this sentence led to the Internet hosts act of 1st August 2000 being drafted in order to protect the technical messenger.
Yet there are limits on bringing a libel case against a forum willy-nilly, because the 1881 freedom of the press act sets a period of limitation, meaning that a complaint cannot be lodged for remarks that were made more than three months earlier.
"But it is important to know just when the period of limitation begins and when it ends," warns Jean-Claude Patin, director of Juritel. "However, webmasters have to show some sign that they are acting responsibly, because providing such proof is a difficult matter," he concludes.
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