DEFAMATION ON THE INTERNET
LexInter | August 3, 2015 | 0 Comments

DEFAMATION ON THE INTERNET

Having regard to article 575, paragraph 2, 6E, of the Code of Criminal Procedure;

Having regard to the briefs produced in demand and in defense and the additional observations;

On the first ground of cassation, taken from the violation of articles 29, 32, 65 of the law of July 29, 1881, 575, 591 and 593 of the Code of penal procedure;

“in that the contested judgment said there was no need to follow the head of public defamation;

“on the grounds that” the disputed dissemination on the Internet, to an unlimited number of people in no way linked by a community of interests constitutes an act of publicity committed as soon as the information has been made available to potential users of the site ; that the prescription of the action for defamation, fixed at three months by article 65 of the law of July 29, 1881 with as a starting point, not the day on which the facts were noted, but the day of the first act of publication , is in this case acquired since the documents in the file establish that the information in question was disseminated on the internet on September 22, 1997 and that the first act of prosecution, consisting of the defamation complaint with the constitution of civil party, only intervened on January 12, 1999 “

personal computer, then translate the digital data for display on the screen and consultation; that, moreover, this reading on the screen, which postulates free accessibility to a public site by means of a download free from technical and / or financial constraints, may not reveal the existence of the defamatory charge, when the latter appears on another page connected to the first by a hyperlink, which is not necessarily activated by the Internet user; that thus, each download with a view to reading on the screen carries out a new act of publication causing a new limitation period to run; that, therefore, by declaring public action time-barred, on the sole ground that “the

2E) “whereas, in the alternative, assuming by hypothesis that the commission of the offense of public defamation on the Internet results from the only” making available to the public “of the disputed charges from a computer server, the public action is prescribed three months after the day on which the disputed digitized information stored continuously on the computer server, can no longer be downloaded by Internet users on their personal computers and read after translation on their screens; , therefore, in the present case, by declaring the offense of public defamation prescribed, after having held that the maintenance online of the disputed charges had been noted by a bailiff on the Internet on November 25, 1998,or less than three months after the first act of prosecution of January 12, 1999, the indictment chamber violated the aforementioned texts;

3E) “while, assuming by hypothesis that in matters of public defamation via the Internet, the starting point for the limitation period for public action must be fixed in the first act of publication, the latter does not proceed from ” a public display of a paper medium with a view to sale in bookstores or newsstands, but is part of a complex technical operation involving the use by the Internet user of computer and telecommunications tools allowing him to actually consult the information placed in a file, provided that the latter is put on line on a site accessible to the public and downloadable without technical or financial obstacle; that, therefore, in this case, by fixing the starting point of the prescription on the day when “theinformation in question was disseminated on the internet on September 22, 1997 “, without explaining the foregoing, for the purpose of determining whether, on that date or, at the very least, on an earlier date of more than three months in the report of the judicial officer of November 25, 1998, itself less than three months prior to the first act of prosecution of January 12, 1999, any Internet user was technically and financially able to freely take cognizance of the information argued of imputations defamatory, the indictment chamber violated the aforementioned texts “;judicial officer of November 25, 1998, himself less than three months prior to the first act of prosecution of January 12, 1999, all Internet users were technically and financially able to freely take cognizance of the information allegedly defamatory charges, the chamber indictment violated the aforementioned texts “;judicial officer of November 25, 1998, himself less than three months prior to the first act of prosecution of January 12, 1999, all Internet users were technically and financially able to freely take cognizance of the information allegedly defamatory charges, the chamber indictment violated the aforementioned texts “;

Whereas it results from the judgment under appeal and from the documents of the procedure that, on January 12, 1999, Mr X … lodged a complaint and became a civil party for public defamation and concealment of violation of the secrecy of the investigation, due to the publication, on November 25, 1998, on the Internet site “www.marianne.en.ligne.fr”, of an article entitled “Soon a case X …”, accompanied by a copy of a letter sent on 17 June 1997 to the office of the examining magistrate;

Whereas, to declare the offense of defamation prescribed, the indictment chamber states that the limitation period begins on the day of the first act of publication, and that the information in question was disseminated on the internet from September 22 1997 whereas the first act of prosecution only took place on January 12, 1999;

Whereas by pronouncing thus, the judges justified their decision;

That in fact, when proceedings for defamation and public insults are initiated due to the dissemination on the Internet, of a message appearing on a site, the starting point of the limitation period for public action provided for by the article 65 of the law of July 29, 1881 must be set at the date of the first act of publication; whereas this date is the date on which the message was first made available to network users;

That, moreover, the indictment chamber has sovereignly assessed by reasons free of insufficiency as of contradiction the date of the first act of publication;

From which it follows that the plea must be rejected;

On the second ground of appeal, based on the violation of articles L. 321-1 of the Penal Code, 11, 109, 114-1, 575, 591 and 593 of the Code of Criminal Procedure;

“in that the judgment under appeal said there was no need to follow the count of concealment of violation of the secrecy of the investigation;

“on the grounds that MY .., author of the contested publication, heard on rogatory commission, did not want to reveal its origin; that he was then using the undisputed freedom given to journalists by article 109, paragraph 2, of the Code of Criminal Procedure; that the source of journalistic information escapes the qualification of concealment; that, for lack of evidence of a fraudulent surrender which, as it stands, remains possible, there is no need to follow from the head of concealment “(contested judgment, p. 6);

“whereas, by affirming abstractly that” the source of journalistic information escapes the qualification of concealment “, without answering the essential chief of articulation having underlined that” on the document diffused on Internet, appear clearly, on the one hand, the stamp of the investigating office and the date of receipt, on the other hand, the quotation of the part in the current file (D 1006) “, and that” thus, the journalists in question could not be unaware that their information came from ‘a criminal offense, constituted by the violation of professional secrecy, the secrecy of the investigation or the mandatory provisions of article 114-1 of the Code of Criminal Procedure, the indictment chamber violated the aforementioned texts “;

Whereas the statements of the judgment under appeal put the Court of Cassation in a position to ensure that, to confirm the dismissal order made on the count of concealment of violation of the secrecy of the investigation, the indictment chamber , after having analyzed all the facts denounced in the complaint and answered the essential articulations of the brief produced by the appellant civil party, explained the reasons for which it considered that there were not sufficient charges against anybody of have committed the offense charged, nor any other offense;

That the applicant confines himself to criticizing these reasons, without justifying any of the complaints that article 575 of the Code of Criminal Procedure authorizes the civil party to formulate in support of his appeal against a judgment of the indictment chamber in l ‘lack of recourse from the public prosecutor;

That, therefore, the plea is inadmissible;

And considering that the stop is regular in the form;

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