FACTS – PROCEDURE – CUSTODY OF THE PARTIES
By summons issued on December 18, 2001, SA PERE-NOEL.FR had Mr. FM, Ms. EC and SARL DEVIANT NETWORK summoned before the Emergency Division of the Tribunal de Grande Instance of LYON.
The applicant stated that its activity was the online sale via the eponymous website of all products in mass distribution; – that Mr. M. held the Internet domain name “defense-consommateur.org”; – that Ms. C. was listed in the Internic database as responsible for the “defense-consommateur.org” site; – that the latter site designated exclusively these two people, Mrs. C. being qualified as “Webmaster”.
She pointed out that the “forum” pages of this site were essentially made up of defamatory messages that were insulting or denigrating her; – that these disputed writings had been recorded by Maître F., Bailiff on November 23 and 30, 2001.
Finally, it observed that the “defense-consommateur.org” site was hosted by the company DEVIANT NETWORK.
In support of its summons, the company PERE-NOEL.FR listed the remarks qualified as defamatory and specified the legal basis of its request in this respect both on article 29 paragraph 1 of the Law of July 29, 1881, repressed by article 32 of the same law as articles 1382 and 1383 of the Civil Code.
In the same way, it based its request presented under the abusive writings on paragraph 2 of article 29 of the said law or on articles 1382 and 1383 of the Civil Code.
Regarding denigrating remarks, calling for a boycott, the company PERE-NOEL.FR based its request on articles 1382 and 1383 of the Civil Code.
As “Webmaster”, Mrs. C., just like Mr. M., declared co-manager of the site, would be required, according to the applicant, to respond to these attitudes prejudicial to his interests.
The company PERE-NOEL.FR therefore asked the Court at the end of its last conclusions:
to prohibit Miss C. and Mr. FM from publishing or contributing to publish, in particular as author, producer, editor, director of publication, webmaster, host, any defamatory, abusive or denigrating comments or writing to the ‘with regard to the company PERE-NOEL.FR, subject to a fine of 1,500 Euros per violation observed;
to order in solidum Mlle C. and M. FM to pay to the Company PERE-NOEL.FR 304,000 Euros as damages;
to authorize the publication of the judgment in two national dailies at the expense of Mrs. C. and Mr. M., in solidum, within the limit of 7,600 Euros per insertion;
to order the full publication of the judgment on the “defense-consommateur.org” site as soon as the judgment is served and for six months, subject to a penalty of 760 Euros per day of non-publication, provided that said url address is still active when the judgment will be rendered;
to dismiss Mr. M. and Mrs. C. of all their requests;
order the provisional execution of the judgment;
to declare the joint judgment to the company DEVIANT NETWORK;
to order in solidum Mrs. EC and Mr. FM to pay to the company PERE-NOEL.FR 8,000 Euros under article 700 of the New Code of Civil Procedure.
M. M. and Mme C. conclude in limine litis for a stay of proceedings pending the outcome of the referral to the DGCCRF.
Basically on defamation, they argued:
that they could not be declared responsible for messages disseminated by third parties and that consequently, they could not be condemned only for messages emanating from themselves;
that the facts alleged by the authors of the messages were real and all the more so since certain counter-evidence from the plaintiff company was not conclusive, such as, for example, letters or faxes sent to Société Générale without any response from the latter are produced. They considered that the untimely debits borne by the injured parties were in fact due to a failure of the computer system of the Company PERE-NOEL.FR;
that the refunds made for the benefit of consumers were mainly due to oppositions to the bank card made by the latter and not by spontaneous refunds from the plaintiff Company;
that the clauses of the contract relating to delivery times were confused and often inconspicuous;
that the facts alleged by various participants on the site were proven without any decisive counter-evidence being produced.
In the alternative, they considered that their good faith was established and they observed that the Company PERE-NOEL.FR had been the subject of “very negative” publications from newspapers and radio stations.
They stressed that the facts of insults were confused with the alleged “defamation” and could not serve as a separate basis.
Finally, on the damage, the two concluding parties observed that the claims for damages were unfounded in that the simple reduction of the “basket” from 763 Francs to 604 Francs in a few months could have many other causes.
By way of counterclaim, Messrs and Mrs C. claimed the sum of 15,000 Euros as damages or the sum of 15,000 Euros in application of article 700 of the New Code of Civil Procedure as well as the provisional execution of the judgment to be intervened. .
SA PERE-NOEL.FR opposed the request for a stay of proceedings which it considered to be purely dilatory.
It recalled that according to the jurisprudence of the Supreme Court, the one “having taken the initiative to create an audiovisual communication service with a view to exchanging opinions (…) can be sued as a producer, without being able to oppose a defect. monitoring of offending messages “.
She observed that Mr. M. and Mrs. C. in a circular letter of December 20, 2001, had declared themselves ready to assume their responsibilities.
The conclusive company took up the various cases recalled by Mr. M. and Mrs. C. and insisted in particular on the messages evoking the theft which would have been committed by itself to the detriment of consumers. For each of the disputes, she explained that the defendants, whose bad faith is presumed in defamation matters, did not provide proof of the existence of theft and that the defamation was therefore established.
In the same way, the company PERE-NOEL.FR analyzed the various disputes which, according to it, constituted insults or denigrating writings.
Finally, she stressed that the two defendants had received multiple warnings, and that they could not argue of their good faith or their ignorance of the law and the criminal qualifications of the theft.
She therefore maintained all of her requests.
The company DEVIANT NETWORK asked the Court to be given notice that it referred to Justice.
However, she requested that the company PERE-NOEL.FR be ordered to pay her the sum of 2,300 Euros under article 700 of the New Code of Civil Procedure.
The procedure has been communicated to the Public Prosecutor for an opinion;
The case set for January 15, 2002 was remitted to the hearing of March 5, 2002 for oral argument.
Whereas the investigation carried out by the DGCCRF is not likely to suspend the course of the legal proceedings; – that there is no place to stay to rule on this ground;
Whereas it is necessary initially to specify the capacity of the defendants within the framework of the prosecutions of which they are the object, that it is in matter of defamation or in matter of insult;
Whereas it is common ground that MM and Mrs C. took the initiative to create an audiovisual communication service with a view to exchanging opinions on themes defined in advance and in this case relating to the difficulties encountered by certain consumers facing certain sales companies; – that they cannot therefore oppose a failure to monitor the messages which are the subject of this dispute; – that they consider themselves as the designers of the offending site and must therefore be held accountable for any infringements which may have been committed on the site they have created;
Whereas, without underestimating the other defamatory facts raised by the plaintiff, the court cannot help but note perfectly characterized facts which are: – the message of November 7, 2001 signed by FM thus worded about the difficulties encountered by a customer of the company PERE-NOEL.FR “I name this theft”;
Whereas the plaintiff provides proof of this publication, which is not denied by the defendants; – that these do not justify the existence of a serious offense of the company PERE-NOEL.FR, which certainly seems to have questionable commercial methods in certain aspects, but on whose account it is not reported proof of a manifest desire for theft and fraudulent evasion against its clients;
Whereas it is the same for the message dated November 18, 2001 thus conceived: “In two mails one totalizes not less than 30,000 Francs purely and simply stolen!” ; that if there may be a dispute between PERE-NOEL.FR and its customers on the nature or the delivery time, this can in no way characterize the fraudulent subtraction which is mentioned in the message;
Whereas it is the same for the message dated November 22, 2001 evoking a “scam” relating to 8,000 Francs;
Whereas the defendants are unable in these cases to characterize the offense they are reporting; – that it follows that the defamation is characterized;
Whereas the facts of insults, which, in the majority of cases, cover these facts of defamation, are also characterized, when the messages treat the Company PERE-NOEL.FR of swindler or “bastard”;
Whereas within the framework of the present litigation, the defendants can not bring any elements allowing to establish such accusations; – that it should be said that the commercial disputes obviously underlying the present proceedings cannot justify the commission of an offense such as defamation or insult;
Whereas some writings such as “Do not buy from them!” or “if that continues, I will denounce them to the tax authorities …!” are such as to characterize a faulty attitude of the defendants within the meaning of Article 1382 of the Civil Code;
Whereas in all cases, the defendants, who acted in full awareness of their acts, cannot invoke their good faith;
Whereas the company PERE-NOEL.FR seeks damages, which, if they are justified in principle, are of a very exaggerated amount; – that it is appropriate to set them at the sum of 80,000 Euros taking into account all the factors which could contribute to the drop in the turnover of a company especially oriented towards commerce via the Internet;
Whereas the defendants must be forbidden to publish or contribute to publish such remarks under penalty of 800 Euros per established infringement;
Whereas the device of the judgment must be published in two national dailies at the choice of the applicant within the limit of 7.000 Euros per insertion; – that this judgment will be published on the “defense-consommateur.org” site as soon as it is served for two months under penalty of 800 Euros per day of non-publication, subject to the existence of the url address on the day of this present judgment;
Whereas the court reserves the liquidation of the penalty payment.
Whereas this judgment must be declared common to the company DEVIANT NETWORK whose request presented under article 700 of the New Code of Civil Procedure is without object;
Whereas this judgment must be covered by provisional execution;
Whereas the defendants must be held in solidum to pay to the company PERE-NOEL.FR the sum of 1,500 Euros under article 700 of the New Code of Civil Procedure;
Whereas the defendants must be held in solidum for the costs;
FOR THESE REASONS
The court, ruling publicly, in first instance and by contradictory judgment,
Holds that there is no cause for a stay of proceedings;
Considering articles 23, 29, 32 and 33 of the Law of July 29, 1881, articles 1382 and 1383 of the Civil Code;
Holds that the writings cited in the context of the summons and highlighted in this judgment constitute either public defamation or public insult or a faulty attitude;
Prohibits Ms. EC and Mr. FM from publishing or contributing to publish, in particular as author, producer, publisher, director of publication, webmaster or host, any defamatory, abusive or denigrating comments or writing towards of the company PERE-NOEL.FR under penalty of EIGHT HUNDRED EUROS (800 Euros) per violation noted;
Orders in solidum Mrs. EC and Mr. FM to pay to the company PERE-NOEL.FR the sum of FOUR TWENTY THOUSAND EUROS (80,000 Euros) as damages;
Authorizes the publication of the operative part of this judgment in two national dailies at the choice of the plaintiff, at the expense of Mrs. C. and Mr. M. within the limit of SEVEN THOUSAND EUROS (7,000 Euros) by insertion;
Orders the publication of this judgment on the site “defense-consommateur.org” as soon as it is served and for two months, subject to a penalty of EIGHT HUNDRED EUROS (800 Euros) per day of non-publication, subject to the existence of the address URL on the date of the judgment;
Reserves the liquidation of the penalty payment;
Declares this common judgment to the company DEVIANT NETWORK;
Holds the application of article 700 of the New Code of Civil Procedure for the benefit of the company DEVIANT NETWORK;
Dismisses the claims presented by the defendants;
Orders the provisional execution of this judgment;
Orders in solidum Mrs. C. and Mr. M. to pay to the company PERE-NOEL.FR the sum of 1,500 Euros in application of article 700 of the New Code of Civil Procedure;
Orders them to pay the costs with application of article 699 of the New Code of Civil Procedure in favor of Maître B., lawyer on his assertion of law (…).