The Internet report, or reports on the Internet

I) Recourse to the bailiff, within the framework of Internet related disputes, is nowadays part of the practices of companies, not only in the context of their search for proof of a fact present on the Internet, such as the disclosure of confidential information, denigration, misappropriation of trademarks, etc., but also with regard to their global strategy for the protection of their trademarks.

For example, it is becoming increasingly common to have a trademark attested on the Internet to prevent it from becoming obsolete. Henceforth, large industrial groups, great creators of trademarks, regularly call upon bailiffs' studies to have entire pages of their sites refer to such and such a trademark, which sometimes has no other existence than these pages.

II) Likewise, having the use of a domain name, or not, recorded is also very useful. The lack of a priori control in the allocation of domain names has generated a phenomenon of cybersquatting which, although less flagrant in recent years, thanks to ICANN's UDRP mediation procedures (WIPO arbitration procedures), does nonetheless exist. This is the case for domain names registered without any site being associated with them, with the sole aim of preventing them from being reserved by a company that would have an interest in them, in particular by the trademark holder. The fact that the domain name is not used generally speeds up the procedures, whether it is an arbitration procedure or legal proceedings.

In any event, prudence requires that the registration of a trademark be concomitant with the registration of a domain name. However, it sometimes happens that a domain name is registered even before a trademark is filed. Here again, it is necessary to establish that the domain name has been used by an active site. Indeed, in the event of a conflict between a domain name and a subsequent trademark, case law establishes the principle that the domain name must be exploited and therefore that a site must be linked to it (TGI Paris, July 27, 2000 case Market Call vs. Mille Mercis, accessible on the site www.juriscom.net).

Under these conditions, the recourse to the judicial officer as a means of proof of an existing or non-existent fact has become an indispensable act. Indeed, having left behind the relative confidentiality in which it used to be, the judicial officer's statement of facts is today a common legal act.

Why prefer the bailiff's report?

I) The bailiff's statement of facts is not the only means of proof that can be used to prove a cyber fact. Indeed, the activity of statement of facts is not a monopolistic matter of the judicial officer. The inventories of fixtures of apartments, for example, are most often carried out by the parties themselves, and it is only in the event of an existing or supposed dispute between landlord and tenant that one of the parties will call upon a Judicial Officer.

Toutefois dans le domaine du constat sur l’Internet, il est plus difficile d’imaginer un constat contradictoire entre les parties. Difficile également d’apporter la preuve « par tout moyen » si ce n’est par l’intervention d’un tiers. Encore faut il que le tiers ait une parfaite connaissance de la base technique du réseau Internet, celle-ci étant susceptible d’altérer la perception de la réalité des contenus hébergés.
Parmi les tiers habilités, trois acteurs majeurs peuvent être cités ; il s’agit de l’Agence de Protection des Programmes (APP) en matière d’atteinte aux droits d’auteur, les experts informatiques et les huissiers de Justice.

II) With regard to the latter, the legislator was keen to strengthen the probative value of their findings since their value is now recognised as being greater than that of the APA or the experts, even if they are judicial.

L’article 246 du code de procédure civile énonce que « le juge n’est pas lié par les constatations ou les conclusions du technicien« , et c’est de manière souveraine que le juge apprécie  l’objectivité du rapport de l’expert (3e Civ., 20 juin 1979, Bull., III, n° 139) ainsi que sa valeur et sa portée (1re Civ., 7 décembre 1999, Bull., I, n° 337).

However, the Legislator wished to develop the probative force of the judicial officer's statement of facts exclusively. Thus the law 2010-1609, known as Beteille, of 22 December 2010, came to modify the order 45-2592 of 2 November 1945 relating to the statute of the Judicial Officers. Before this Law, like expert reports, bailiffs' reports were considered as mere information. With the new wording of Article 1 of the aforementioned Order, the bailiff's findings are authentic until proven otherwise. The bailiff's statement of facts is consequently the surest means of proof in civil matters.

Which bailiff to choose?

I) First of all, it is important to remember that litigation is the responsibility of the courts in whose jurisdiction the damage is suffered. Under these conditions, the French courts have jurisdiction to settle disputes of holders of trademarks registered in France who would see one of them used as a domain name.

II) This being the case, it remains to be determined which court to refer to and which bailiff to entrust with the findings. It was generally accepted, as a legacy of the law of the press, that the place of establishment of the disputed fact entailed de facto competence of the court in whose jurisdiction the fact was established. However, isolated case law, which was subsequently confirmed, has affirmed that the place where the fact was established does not matter in Internet matters. Indeed, the courts have declared themselves competent, regardless of the place where the bailiff's findings were made. It was therefore presumed that the Internet site accessible in a given place in France was also accessible in another place.

Réalité factuelle et technique, ce « tour de passe passe » jurisprudentiel (par exemple voir TGI Beauvais 31 octobre 2002, R. Van Butsele / SARL Châteaux and Country reproduit sur le site www.legalis.net) demeurait hasardeux pour le justiciable, en l’absence de base jurisprudentielle solide et unifiée. Le hasard veut que ce soit l’un des constats établis par notre étude qui a permis de consacrer cette jurisprudence attendue par un arrêt de la Cour d’Appel de Paris du 30 septembre 2009 (CA Paris, 2eme, 30 septembre 2009 My Little Paris / Violette 2008 publié également sur le site Legalis). Dans cette affaire, nous avons dû dresser un procès verbal sur Internet à la demande de la société My Little Paris. La question qui s’est alors posée était celle de savoir si la partie requérante pouvait assigner la partie adverse devant le Tribunal de Commerce de Paris, 75, alors que la constatation des faits litigieux avait été effectuée dans mon étude de Nanterre, Hauts de Seine, 92.

Thus, the question of the jurisdiction of the Tribunal de Grande Instance de Paris was raised both at first instance and on appeal. In its decision, the Paris Court of Appeal affirmed the jurisdiction of the Paris Commercial Court, since it was not shown that the site was not accessible from Paris. As a result of this case law the applicant for a statement of facts on the Internet is no longer limited ratione personae vel loci in the choice of the Judicial Officer he mandates to draw up a report of the statement of facts.

Clearly, the place where the contested fact is established no longer gives rise to the exclusive jurisdiction of the court in whose jurisdiction the fact was established. From now on the choice of the judicial officer will be made either in consideration of intuitu personae or because the judicial officer will have developed a speciality within his office. In the latter case, it may be interesting for the applicant to check beforehand the extent of the technical competence of the judicial officer.

Standardization of reporting on the Internet

I) The profession has organised itself in order to be able to respond to the demands made on it in this rapidly expanding field and the compulsory professional training of judicial officers reserves many hours for new technologies. For several years, continuous training has been provided on this subject and the statement of facts on the Internet has become a common and relatively standard act.

II) Standard, the word is right because it is a true standard of the Internet report which was created by the adoption of the AFNOR NF Z67-147 standard. Since January 2009, the commission "Authentic instruments of judicial officers" has been working on the adoption of a standard allowing to meet the requirements of the actors of the Net Economy.

By submitting themselves in this way to the control of a standardization body, judicial officers have set a precedent since it is the first time that public and ministerial officers create a standard from one of their everyday acts. The advantage of this standard is on the one hand to have taken into account the jurisprudential evolutions as a prerequisite to the operations of statement of facts since this standard takes again in a detailed way all the jurisprudential requirements, and in particular the founding decision on the matter (TGI Paris, 3rd chamber, 1st section, 4 March 2003 Frédéric M / Ziff Davis), and on the other hand to offer an increased legal security.

Indeed, once the act meets a standard, it seems to be more difficult for case law to call into question an element of the act.

Regarding the operating mode of the report on the Internet as described in the standard NF Z67-14, it is normative and sets out the essential elements of the report and in particular clearly states the technical prerequisites:

- Pre-audit enquiries :

o Precise description of the configuration of the workstation used
o Description of the network architecture and absence of proxy
o Determining the IP address
o Detailed description of the means of access to the Internet network

- Transactions to be carried out before a finding :

o Possible capture of network flow
o Viral analysis
o Spyware analysis
o Deletion of history items
o Time verification/synchronization, by NTP protocol or synchronization to an atomic clock
o Browser settings (blank start page, no proxy, etc.)

Under these conditions, the creation of the Standard NF Z67-147 associated with the modification of the 1945 order, which reinforces the probative force of bailiff's statements of facts, can thus lead one to suppose that in Internet matters, the bailiff's statement of facts produced during the debates on the occasion of a dispute will almost certainly never be able to be disregarded by the judge.

The limits of the report

The bailiff's report on the Internet must however meet a certain number of technical constraints, but also has certain limits, whether legal or jurisprudential.
These limits concern in particular the limitation period, the operations authorised within the framework of a statement of facts, and finally the fact that the Judicial Officer must respect a necessary obligation of neutrality, and act like any Internet user, without concealing his identity.

(I) First of all, as regards the starting point of the limitation period, the date of the finding is not necessarily recognised as that starting point. This is illustrated by the Nancy District Court, which, in an interim order dated May 7, 2010 (Banque Populaire Lorraine Champagne v. Jean M, QJFG Networks, available at www.legalis.net ), recalled that in matters of press law, the limitation period set forth in Article 85 of the Act of July 29, 1881 is mandatory, even if the press is online, i.e. three months from the publication of the allegedly defamatory statements.

Le Tribunal indique encore que « s’agissant de nouvelles technologies, la date de publication s’entend de la date de premiere mise à disposition du public, soit du premier acte de publication, sans qu’il puisse être soutenu que sur internet l’acte de publication devient continu« . Ainsi, le constat du fait argué de diffamation doit intervenir rapidement, mais ne suffit pas à déclencher ou à interrompre le délai de prescription.

II) Concerning the operations of statements of facts, the Judicial Officer establishing and drafting his Statement of Finding must use a traditional connection to the Internet network and describe what he sees like any other Internet user.

Indeed, the judicial officer must limit himself to simple operations of statement of facts. He must also limit himself to the current findings of the Internet network. On this last point, even if the statement of facts of an Internet site as it is on the day of the statement of facts does not present any major difficulty, it is sometimes useful or even necessary to describe a site not as it is on the day of the statement of facts but as it was in the past, whether the disputed fact has disappeared, or on the contrary its deletion is disputed. There are technical means of checking the past on the Internet, at the very least to verify what happened there in the past.

D’une part, les moteurs de recherches conservent en mémoire (en cache) les pages des sites avant leur modification. Par exemple  un constat d’Huissier pourrait être réalisé sur les pages conservées en cache par Google, ce qui permettrait d’apporter la preuve d’un fait qui n’est plus présent sur Internet. D’autre part, le site Internetwww.archive.org conserve et archive les pages de millions de sites internet au fur et à mesure de leur mise à jour. A l’aide de la « Wayback Machine » proposée sur ce site, il est possible d’avoir accès à de multiples versions antérieures des sites Internet. Véritable mémoire de l’Internet, ce site permettrait donc de constater un fait antérieur, une modification de site, etc…

Cependant, par un arrêt important du 2 juillet 2010, la Cour d’Appel de Paris (CA Paris, 2eme chambre, affaire Saval – Laval contre Home Hopping Service également publié sur www.legalis.net) a eu à se prononcer sur la recevabilité d’un constat sur l’Internet effectué sur le site www.archive.org. La Cour a jugé que « le constat [ayant] été effectué à partir d’un service d’archives de pages internet (…) exploité par un tiers, qui est une personne privée sans autorité légale (…) le constat (…) est dépourvu de toute force probante« .

This decision is easily understandable by the value that both the legislator and the case-law recognise for the bailiff's act, which cannot run the risk of being distorted by the uncontrolled data of a commercial company.

In addition, an assessment of an entire site is sometimes necessary, in particular to demonstrate the extent of a loss. Moreover, the case law remains strict in the technical means that it authorises the judicial officer to use to carry out his observations.

Indeed, computer tools make it possible to "suck up" an entire website: all its pages, photographs and links are sucked up and copied. It then appears tempting for a Judicial Officer to proceed to the global vacuuming of a site, to place this copy thus made under seal then to deliver it to the magistrate at the time of a lawsuit. This solution makes it possible in a very short time to take a copy of an entire website, to be certain that nothing has been forgotten. This is the reason why the practice of site vacuuming by bailiffs has developed rapidly.

However, the Paris Court of Appeal (Paris Court of Appeals, 4th chamber, 25 October 2006, available on www.legalis.net) considered that these operations of site extraction and engraving of the copy on CD-ROMs "go beyond the simple statement of facts, which allows the bailiff to take screen shots, and can be analyzed as a descriptive infringement seizure" and consequently, the Court of Appeals cancelled the statement of facts.

This case law is particularly restrictive with regard to the field of action available to the bailiff and he cannot, unless he is in the context of an infringement seizure, proceed to a suction of the site but must limit himself to screen copies of pages. Here again, it is the value of the bailiff's act and in particular its intended purpose which probably explains this jurisprudence. Indeed, as a ministerial officer, the judicial officer draws up Minutes of his objective material observations. His action cannot be reduced to technician manipulations.

If it were shown that a site vacuum is the only means of safeguarding evidence, but that the seizure-for-counterfeit procedure is not applicable in this case, I would advise that the matter be referred to the President of the Tribunal de Grande Instance or the Commercial Court, by way of a motion on the basis of Article 145 of the Code of Civil Procedure, since, according to this article, "if there is a legitimate reason to preserve or establish before any trial evidence of facts on which the solution of a dispute may depend, legally admissible investigative measures may be ordered at the request of any person concerned, on application or in summary proceedings".

The bailiff could then be authorized within a legal framework to proceed to a vacuuming of the site. However, I would recommend to be cautious and to write in parallel a report of copies of pages in the hypothesis of the retraction of the order having authorized the measure of aspiration of the site, since according to the terms of article 497 of the Code of Civil Procedure, "the judge has the faculty to modify or retract his order, even if the judge of the merits is seized of the case".

III) The judicial officer cannot hide his identity and professional quality. Under these conditions, if the statement of facts of the site requires the seizure of an identity, on the occasion for example of the online purchase of a product, or for the access to a site requiring a registration such as the social networks, the judicial officer who would indicate another name, or another quality than his own, would use unfair manoeuvres which could lead to the cancellation of his statement of facts.

It is therefore advisable that when filling in the identity, the bailiff should not only enter his real name and surname, but also indicate his professional capacity. The fact that this registration is then managed by a computer has no legal consequences, the judicial officer must show honesty and probity, and therefore act in his displayed capacity as a judicial officer.

In conclusion, the judicial officer's statement of facts on the Internet is the best way to bring back the proof of a fact which took place there, provided that the conditions of validity of this particular legal act are respected.

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