“Cyber-reputation” has now become essential, and the risk of malicious publications have increased with the advent of the Internet community. Vincent Dufief, lawyer at the bar of Paris specialized in criminal law of new technologies and privacy law, an update on the legal means available to victims.
It is a fact, the Internet community now allows each user to make any potentially visible content by tens of millions of people. Need clearly to celebrate the consecration of the freedom of expression and the advent of a “citizen journalism” that allows pushing the last barriers of censorship and disinformation, it remains that this ease of dissemination of information also allows to publish content blithely crossing the bounds of legality. It is also clear that professional journalism and “citizen” journalism mix as often on the internet, such as on the sites of the “traditional” media where readers comments alongside professional article, thereby providing information often subjective, and not necessarily checked, visibility and a credit individuals.
In this context, the risk of prejudice to the reputation of a person or business by a publication on the internet is real; the danger would be that the President of the Republic has specially appointed Advisor to control everything that is said on it on the web.
This risk is certainly not new but appears to be currently accentuated because a dual phenomenon. On the one hand, the “cyber-reputation” becomes essential, insofar as most of the people now have the systematic reflex to launch a small investigation on the internet before any new relationship, whether his future boss, his doctor or the neighbourhood restaurant online reputation management. On the other hand, the possibility to inform belonging only to trained professional journalists and compelled to an ethics, the risk of malicious publications necessarily increase.
If it is necessary to be aware of this risk, it is especially important to know answer, especially as it concerns only the personalities. Each anonymous is indeed a potential target: deceived lover, re-set, rival candidate malicious, the judicial Chronicle is no shortage of illustrations of retaliation on the internet.
Is what legal response then possible to make?
The first impulse should be to preserve the evidence of the situation, ideally by finding of bailiff, and identification of the editor and the host of the offending website. It should then be to legally characterize the publication; in most cases, this will involve infringement of privacy, image, or so-called “press” offences such as the insult or defamation. The assessment of the unlawful nature of the words will be often delicate, especially defamation, which requires the allocation of a specific and not a simple charge of vague and General.
This characterization of what is fundamental because it determines the date up to which it is possible to do. Press offences prescribing in three months of broadcasting, it is necessary to act very quickly and do not risk to arrive too late, to regularly monitor what is published on the net. Indeed, it is not uncommon that victims discover although defamatory after expiry of the period of action.
Despite the urge to act and the emergency, the victim must also be aware that freedom of expression is very well protected by the law, and accept that very critical comments on someone, or a product, may be perfectly legal. Similarly, under the right to information, it will be difficult to delete articles about a conviction or involvement in various fact, unless an infringement of the presumption of innocence.
This being exposed, finally opens the action phase itself. Generally, the first step to obtain the removal of content is friendly and is to write to the editor of the site remove content, correct them, or to publish a right of reply. The community internet offers additional opportunities for “friendly” actions: this is a response in line with a comment on a blog, the ability to simply change the content of the article on Wikipedia!
In the absence of response, or negative response, the case can become contentious. The strategy differs depending on whether the Publisher of the site is identified or not.
For known French editor, the situation is quite simple, because it can be directly translated before the civil courts or criminal French. The case is complicated somewhat if the Publisher is unknown, but the site is hosted by France. In such cases, the solution is to turn to the hoster, technical intermediary to keep all data connection to the site that it hosts, in two optical: first, to try to get his identity of the Publisher by means of a specific procedure and second for him notify the illegal content that it hosts. Indeed, the hoster is not responsible for the content it hosts up to as long as their character “manifestly unlawful” to be notified. Therefore, as soon as such content are notified to him, it is supposed to remove them. For publication of illegal content on a site, it may thus be useful to notify the hoster to obtain the deletion. But prudence and discernment is needed, because it may be difficult to determine the “manifestly unlawful” nature of content, and abuse notification – i.e. of reporting as “manifestly unlawful” content that is pas – its author is the risk of criminal liability…
If the Publisher or host are located abroad, the situation is really complicated because the victim will then user procedures of the countries concerned, to seek the removal of content. In some countries, the hope of leading such a procedure is unfortunately quasi-nul. Remain then three solutions. The first is to file a criminal complaint against X and leave the investigators find the editor; for acts of minor severity, the chances of this complaint lead are low. The second is to ask the French judge to order all French access providers to block the France access to the concerned site: this extreme approach would be likely to lead to cases extremely serious.
The third solution is not legal and is to appeal to specialized agencies that will be made to “drown” the information in the spaces of the internet and, de facto, deprived of any visibility. The success that this activity shows the limits legal response, which was facing the transnational nature of the internet, the lack of harmonisation of laws in different countries and the lack of cooperation of some countries, true paradise for sites advocating freedom of expression without limits.