In order to obtain compensation for a loss suffered on a website, it is necessary to identify the activity of this website, more specifically its role as a publisher of online public communication content or as a hosting provider.
In the first situation, the website publishes its own content, while in the second, it offers the possibility to third parties to publish theirs.
The qualification of editor, induces a form of control of the editorial content, that is to say, of control of the information which is diffused there.
Also, these publishers, when they are professionals, are subjected to certain obligations as for example the mention on their site of a certain number of elements such as their corporate name, etc…
In the information sector, it is on the director of publication, thus the editor, that the presumption of responsibility rests rather than on the journalists or editors considered only accomplices. He is likely to see his responsibility engaged, as well tortious as contractual, in particular in case of publication of defamatory, incomplete, obviously illicit contents…
On the other hand, the host is the actor who will offer to others the possibility to store contents for an online public communication. His regime is provided for in article 6, I, 2 of the Law for Confidence in the Digital Economy of June 21, 2004, which defines him as: “natural or legal persons who ensure, even free of charge, for the purpose of making available to the public the storage by online public communication services of signals, writings, images, sounds or messages of any kind provided by the recipients of these services”.
The question of its responsibility arises, particularly in the absence of a content editor.
Indeed, the hosting provider has an obligation to remove and prevent the broadcasted contents. Nevertheless, he benefits from a particular liability regime, called “limited”. Thus, he will only be held liable in case of :
actual knowledge of the content, which must show a clear illegality ;
lack of diligence in the removal of the illegal content from the moment he has had knowledge of it, i.e. the reception of a notification.
He must therefore show passivity in the authority and knowledge of these contents and prove to exempt himself that he had knowledge neither of the illicit character, nor of the contents in itself.