SUMMARY
One of the true plagues of these last years on Internet
network is that of the presence of illicit contents. The latter
take various forms being able to cause more or less serious damage for
the Net surfers.
Because of the proliferation of these
contents, the legislators, Canadian and European, decided to cure the problem
by working out new laws. However, the international aspect of the
network generates difficulties of application of the laws what
inevitably restricts the regulation installation. In such a context,
how it is possible to effectively prevent the circulation of the
illicit contents in Internet ?
The principal released solution is the
setting concerned of the responsibility for the service providers Internet.
The latter must censure the contents presenting an illicit character on
Internet. The legislators thus chose to carry reached to basic rights
such as the freedom of expression to cure the problems. However, this
solution is in contradiction with philosophy originating in Internet which
preaches an absolute freedom. However, such a
limitation with this freedom can prove to be necessary and justified taking
into account the width of the illicit contents circulating on the network.
FOREWORD
First of all, I make a point of thanking my director for
research, Mrs Charlaine Bouchard, to have guided me in the realization of this
work.
I would also wish to thank Mr Pierre Trudel, for his
invaluable indications all carried out via this formidable tool of
communication which is Internet network.
Lastly, I will thank my family (my parents, my brothers,
Berlioz, Esly...), my dear friends, unquestionable professional and professors
to have supported me during the development of this memory. Thank you for your
support.
I make a point of warning the readers who the legislation used
in this work is up to date only as from May 31, 2004. However, an appendix of
update is accessible to the end.
The nations, just as the individuals, cannot live
that in two manners, namely :
while flying or while producing.
Saint-Simon
CONTENTS
SUMMARY
I
FOREWORD
II
CONTENTS
IV
INTRODUCTION
1
TITRATE I
THE RESPONSIBILITY FOR THE SERVICE PROVIDERS
INTERNET : A MAJOR FACTOR OF REGULATION OF THE ILLICIT CONTENTS
CIRCULATING ON INTERNET
8
CHAPTER 1
CONCEPT OF «ILLICIT CONTENTS» :
A CONCEPT DIFFICULT TO DEFINE
9
Section I : A definition of the concept
9
Paragraph 1 : A concept with variable content
10
Paragraph 2 : Derivatives of the concept
14
Section II : Illicit illustrations of
contents
17
Paragraph 1 : Infringements in general matter
17
With) Heinous propaganda
18
B) Infringements against national safety :
terrorist acts
28
Paragraph 2 : Specific infringements against the
minors
30
With) Pornography and the obscenity
31
B) The pedophilia and pedopornography
36
CHAPTER 2
THE PASSAGE OF A SYSTEMATIC RESPONSIBILITY TO
A CONDITIONAL RESPONSIBILITY
41
Section I : Towards a mode of responsibility
righter
41
Paragraph 1 : The emergence of a specific
legislative framework
42
With) The installation of the French legislation :
several fallen through attempts
42
1) A first discussed outline
42
has) Jurisprudential attempts
43
b) The legislative starter
48
2) The intervention of the legislator
50
has) The Law n°2000-719 of 1 August 2000
amending the Law of September 30, 1986 relating to the freedom of
communication : a contradiction surprising with the European
provisions
50
b) The Directive of June 8, 2000 on the electronic
trade : a return to a responsibility for the suppliers
53
c) A bill transposing the Directive on the electronic
trade (for the confidence of the numerical economy) : an
important polemic
56
B) Appearance of the Canadian regulation
59
1) The federal legislation : a concerted solution
59
2) The Québécois Law concerning the legal
framework of information technologies: a legislative insulation
61
Paragraph 2 : Combination of the new right with
the common right
63
With) Common right of the civil and penal
liability : always applicable
63
1) The civil liability
63
2) The penal responsibility
65
B) The mode of the responsibility for the editors or
directors for publication : a responsibility in
« cascade »
67
Section II : The conditional
responsibility : a mode of consensus
68
Paragraph 1 : A responsibility « of
reason »
68
With) The first person in charge : the content
provider
69
B) Contents of the principle of responsibility
70
1) Service providers Internet a priori irresponsible
70
2) Various factors of charge of responsibility
72
has) The control of information
72
b) The knowledge of information
73
c) The absence of action
75
Paragraph 2 : Exemptions or limitations of
responsibility
76
With) The absence of general obligation of monitoring
76
B) Determination of the responsibilities according to
various activities'
77
1) Simple transport
77
2) The supplier of access Internet
78
3) The activity known as of
« caching »
79
4) The supplier of lodging
80
5) Actors of navigation
81
CONTAIN THE II
STAKES OF THE APPLICATION OF THE CENSURE LIKE
MEANS OF REGULATION
83
CHAPTER 1
THE EXERCISE OF « CENSURE
OFFICIAL » : AN EXCESSIVE SOLUTION
84
Section I : PSI :
« judges » or « police officers »
of the contents diffused on Internet
85
Paragraph 1 : An extraordinary role for the PSI
85
With) « judges of the contents » or
it « organizes networks »
85
B) The delicate exercise of the censure : a
serious act
87
Paragraph 2 : Limits of the new legislative
systems
92
With) Important legislative gaps
92
1) The absence of procedure of withdrawal and
notification
93
2) Uncertainty for certain actors of Internet network
95
B) A lack of precision and clearness
96
Section II : Attacks necessary and legitimate
to the right to the private life
99
Paragraph 1 : Restrictions on the freedom of
expression
100
With) The base of freedom of expression
100
B) Difficulties related to the exercise of this freedom
on the network
104
1) American and Canadian absolutism : one
« informational paradise »
105
2) European relativism : a more mitigated solution
109
Paragraph 2 : The desire of identification on the
network
112
With) Anonymity : corollary of the freedom of
expression
112
B) Anonymity with the identification : a well fed
debate
115
CHAPTER 2
PALLIATIVES WITH THE EXERCISE OF THE
CENSURE : ALTERNATIVE AND COMPLEMENTARY SOLUTIONS
121
Section I : Quasi-legal controls
121
Paragraph 1 : Controls of the diffusion : a
source of right
122
With) Lex electronica : uses and the
«Netiquette»
122
B) « codes of good control »
124
Paragraph 2 : Controls with the reception : a
voluntary censure
126
With) Systems of markings : labels or labelling
126
B) Controls of the person receiving benefits
127
C) Software of filtering
128
D) Parental control
130
E) «Hotlines» : mechanisms of
telephone description
131
F) The mechanism of accreditation
132
Section II : The development of a world
regulation of Internet network
134
Paragraph 1 : International co-operation : a
solution to be developed
134
With) Interventions of international organizations
135
1) The international level
135
2) Within the Community framework
137
B) Convention on the cybercriminality
138
1) International dimension : a disadvantage to
fight against the cybercriminality
138
2) Contents of Convention
139
Paragraph 2 : The ambitious step of associations
and the private sector : an important role on the network
142
With) The dominating intervention of associations
142
B) The role of the sector deprived to promote
self-regulation
144
CONCLUSION
145
BIBLIOGRAPHY
148
COUNT OF THE LEGISLATION
148
COUNT OF JURISPRUDENCE
155
COUNT OF THE DOCTRINES
161
APPENDIX
179
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