Les articles 1240 et 1241 du code civil fondent la responsabilité pour faute. Le premier implique une faute volontaire, le second une simple négligence, une simple imprudence. Dès lors que ce fait génère un préjudice, la victime est en droit d’en demander la réparation. La concurrence déloyale constitue l’un de ces faits. Mais la jurisprudence admet une responsabilité pour des faits qui en relèvent, par exemple le dénigrement, en dehors de toute concurrence. L’arrêt de la Cour de cassation du 4 mars 2020 illustre cette constatation.
La Cour juge que « même en l’absence d’une situation de concurrence directe et effective entre les personnes concernées, la divulgation, par l’une, d’une information de nature à jeter le discrédit sur un produit commercialisé par l’autre constitue un acte de dénigrement, à moins que l’information en cause ne se rapporte à un sujet d’intérêt général et repose sur une base factuelle suffisante, et sous réserve qu’elle soit exprimée avec une certaine mesure ».
La Cour admet la condamnation d’une société qui avait publié sur son site internet ainsi que sur les réseaux sociaux les résultats des deux rapports établis par un institut de recherches tendant à démontrer que l’utilisation du quartz de synthèse exposait le consommateur à des risques pour sa santé. Il faut encore dire que le dirigeant de cette société avait publié sur son compte « Twitter » et sur son « blog », des articles faisant état du danger présenté par les plans de cuisine en quartz de synthèse, comme ayant des composants cancérigènes et mutagènes. La Cour considère que « l’information divulguée ne reposait pas sur une base factuelle suffisante au regard de la gravité des allégations en cause ». (Com. 4 mars 2020, n° 18-15.651)
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