La règlementation des contenus illicites circulant sur le reseau internet en droit comparé

INTRODUCTION

Who, nowadays, did not use or not intended to speak about « highways of information » ? The Net surfers are streets on this new mean of communication. This enthusiasm of the innovation and the facility thus allowed their expansion. « There is today a half billion Net surfers in the world, and one counts almost four million new Net surfers every month^1(*) ».

The highways of information produced an inevitable change of the behaviors, like, were of the years before, television, the radio or the minitel in France. They became the new daily means of communication for the citizens who see there a tool fast and effective to communicate and to get information^2(*). Consequently, these highways become a place of exchange, meeting and freedom of a great part of the population.

Among these networks which take part in these highways of information, more known and used is without question « Internet ». It is about one « mother of all networks » named sometimes « cyberspace ». This cyberspace^3(*), makes it possible for example to people of in the world to everywhere communicate between them. Internet indisputably marked the contemporary art of the communication. This tool changed, changes and will change still indeed our lives^4(*), that some want it or not.

Internet, whose philosophy is quite specific, knew a rather chaotic existence. For this reason it is interesting to briefly expose the broad outline of its history in order to better encircle it. Initially, Internet was used with fine soldiers by ARPA (U.S. Defense Departement' S Advanced Research Projet Agency) in the years 1960, for finally being taken again and was developed by the researchers and university American. The first computer network in the world was baptized ARPANET. It connected certain American universities so that they can communicate between them. Then, this perfectly functioning system was developed to make it available to all. Thus Internet appeared and the questions about its regulation with him. As of its origin, the idea of freedom in the exchanges is installed. The constraints of the market and the pressures of the large commercial companies are then placed out of the sometimes utopian design of the researchers. They want to impose their ideals based on the division of information, a universal access to the computers like on the freedom and the exemption from payment attached to this information^5(*). The cyberspace becomes to some extent a space of absolute freedom where still nowadays, certain Net surfers assert it. Doesn't this philosophy, still quite present on Internet and defended by many users, block the installation of a minimum of barriers and limits with this unlimited freedom, often source of infringements?

The cyberspace, vector without border and where the national laws seem not to exist, thus became a place favourable with the deviances and the illegalities, because of this famous libertarian philosophy. The Net surfers see themselves confronted, in spite of them, with images pedopornographic, racist, force, and even with findable pornographic spams in the letter-boxes or by the means of publicities. Generally, they are imposed to the young people when they « surfent » on the network^6(*). Indeed, today, we can note that racist propaganda or the pornography is much easier to find on Internet than at the beginning of the Nineties. Any Net surfer can, after only a few minutes, to visualize one of these sites, y surfer and to read there all information which is published there. Of at his place, it can print the whole, order all kinds of objects, buy them and even to engrave them if it wishes it. What was formerly proscribed, hidden, ashamed and continued is nowadays in all legibility and visibility on the network. How we under these conditions can, to regulate this new technology efficiently and thus to protect the vulnerable people from these illicit contents ?

It thus seems clear that the first victims of these contents are generally, unfortunately, the minors. Moreover, « the parents declare themselves sensitive to the risks of exposure to shocking contents incurred by their children on the Internet. According to a SOFRES-BayardWeb investigation of March 2002, 78% of the parents were declared thus worried by «the risk for the children of going on sites or making inappropriate meetings»^7(*) ». This concern, with regard to certain contents and activities, seems completely justified and represents really a paramount concern. Internet is on the way to become the media of reference of the young people^8(*) and the number of users ceases increasing at the same speed only the illicit contents. How can we thus prevent the proliferation of these contents or at least, how to prevent that the children do not see them or do not consult them ?

The major problem is that Internet network shows particular characteristics which do not facilitate its regulation and its control. Indeed, thanks to this tool, the Net surfer, adult or minor, will be able surfer in the whole world without nobody controls neither does not supervise the services which he uses, nor contents of its exchanges. It is a completely open network as for what it transports. The distances and the borders are abolished. Thus for a user being on a campus, to communicate with a machine being in Australia or to buy books in the bookseller of at side, will be carried out quickly by simple « click » and without any disadvantage. Internet does not have any definite place making it possible to locate it in an unquestionable way nor of center of control. It thus does not have any body of control which can regulate it nor of administrative structure the representative with regard to the users and of the thirds. It is based on the principle of a network « without head ». Everyone can thus reach it and take part in it. Consequently, Internet is a fabulous means for the profusion of the illicit contents. Moreover, for some, it can be characterized in the following way : « more central control, more chiefs, more laws : no nation will be able to adapt it, no administration to ensure the police force of it^9(*) ». If we start from this quotation, how to set up a real regulation on Internet ?

However, there are particular legislations definite by each country but applicable only within the limits of their own territory^10(*). Internet network is thus not one « space without right ». The right applies to Internet. There are thus laws and « in theory, which is interdict in the real world is as much in the virtual world^11(*) ». However, Internet gets a certain feeling of freedom by which the Net surfer omits to respect the laws under cover, in particular, of anonymity. But let us be us really anonymous on the network ? Is necessary it to identify all the Net surfers to limit, see removing the illicit contents circulating on Internet ? For the moment, the legislator, that it is for example Canadian or French, intervened to regulate this tool of communication which poses, as we can notice it, of serious problems.

The countries thus legislated in order to install barriers and limits with the too great latitude taken by certain Net surfers. Two ways were selected. Initially, a mode of responsibility for the service providers Internet (PSI) was released to cure this phenomenon of the illicit contents. This solution seems justified since these people appear at first sight, best placed to control these contents. However, must they control all the contents ? How must-they to proceed ? They will become judges of the contents or the new police force of the network ? In the second place, the censure was retained by the States to differing degrees. This solution was judged like inevitable in the democratic countries because of the excessive presence of illicit contents. This exercise of the censure is carried out according to several means which can lead to important infringements of the basic rights such as the freedom of expression and the rights of the person. It can appear rather astonishing that the censure is the solution chosen by Canada and Europe, of democratic countries being said. Thus a legitimate question can arise which is of knowing why such countries adopt this kind of system of regulation and if it is really the only possible solution.

It seems clear that the characteristics specific to Internet, like those not to have any border and to be instantaneous, prevent the application of an effective control of the illicit contents. Their presence on the network increases significantly without any fear of the authorities. The latter nevertheless tried to slow down the width of this phenomenon but it seems difficult to counter them. This is why the fundamental question, in the center of this study, is as follows. How can we effectively regulate the illicit contents conveyed on Internet network without restricting the rights of the individuals and thus, to protect the vulnerable users ?

To answer this topical question, it is essential to specify that the constant evolution of the cyberspace does not make it possible to make a complete and static study of this field. The sources innumerable and are diversified. Consequently, it is important to keep a critical spirit on these last since all are not veracious or useful. This is why we will treat only certain contents. The youthful pornography and the pedophilia, which are regarded as infringements carrying exclusively reached with the minors, will be analyzed in our study. Indeed, as we underlined, their first victims have access to the network with complete freedom, without any true parental control. They can thus arrive to sites prejudicial very easily and generally, in an involuntary way^12(*). The same applies, for the heinous remarks which abound on the network significantly. We will thus analyze these infringements which pose, nowadays, of serious problems and incited the countries to legislate and sometimes even, to collaborate between them.

The pursued principal goal of this study, is to clarify the means of regulation chosen by the various countries studied to reduce to the maximum the presence of illicit contents diffused on Internet. With this intention, we will resort to a exegetic analysis but also, a critical and comparative study between Canada, and in particular Quebec and France, influenced incontestably by Europe. Other legal systems such as that of the United States, will be also present in this memory, but only by simple incursions.

Our comparative study between Canada and Europe is likely to make our work more interesting. Indeed, these two systems of right do not have the same legal culture. Canada is a federal country bijuridic with the difference of France which has a system of civil law. Quebec holds however a characteristic, it is an analog and digital system. It will be thus enriching to put forward the various orientations chosen according to the legal design of these countries. Some incursions into the legislations of certain Canadian provinces will be also carried out. Our study shows a certain specificity in the choice of the legal systems since many are those which are leaning on the analysis of the American regulation without worrying about the others on the matter. We will possibly bring, by this memory, a new vision on certain points.

To study the legal systems of the various studied countries, we will proceed in an inventory of fixtures of the decisions of the courts which tried to release from the principles of responsibility with regard to the PSI. They will be analyzed chronological manners for better including/understanding their evolution. Many articles of doctrines will be also studied for this work because of the topicality of our subject as well at the international level as national. Our study will suffer however from important imperfections in particular in what it will treat only of the criminal responsibility even if the contractual practice is a means also very much used to control the network^13(*). Then, we will proceed to the study of the new legislations put into force to finish by the study of the various instruments of autoreglementation. All these applicable national regulations on Internet can sometimes seem inappropriate to see inapplicable on such a support. This is why a study criticizes will be also carried out. It will be a question of analyzing the effectiveness of the regulations and of putting forward the gaps and the limits of these last. Lastly, the studied subject overflows the simple usual legal framework. The political, economic and sociological stakes will be sometimes raised in our analysis. The appearance of Internet generated new behaviors and new orientations in many fields. It is thus essential to take into account this reality to determine our problems correctly.

Our study will be divided into two parts in which we will expose the principal solutions chosen by the countries to regulate these illicit contents circulating on Internet network. The first part will relate to the mode of the responsibility for the PSI, considered as an important means of reduction in the illicit contents on the network (Title I). The second will treat censure like means of regulation of Internet (Title II).

* ¹ Jean-Pierre Raffarin, Speech of the Prime Minister in front of Electronic Business Group- Presentation of the plan RE/SO 2007, November 12, 2002, on line on  : site of French the Prime Minister < http://www.premier-ministre.gouv.fr/fr/p.cfm?ref=36713&d=1 > (site visited on March 12, 2004).

* ² More than one third of the French uses Internet, at least occasionally. The young people from 15 to 24 years massively became users: 68% are, that is to say to it ten points moreover than in April 2001. More than one Net surfer out of three in A a daily use, and approximately one on four uses it several times per day. See the site of Artesi (Regional Agency of Technologies and the Company of information), on line on  : < http://www.artesi-idf.com/article.php?artno=4810&headLine=srubri > (site visited on March 12, 2004).

* ³ The cyberspace is defined as the three-dimensional space of the data-processing networks where all the audio electronic signals circulate, vidéos and others. See CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, the illegal and offensive contents diffused in Internet, Ottawa, Government of Canada, 2000, on line on  : < http://www.brancher.gc.ca/cyberaverti > (site visited on March 12, 2004).

* ⁴ Pascal LAPOINTE, Utopie.net  : Reality Internet after the dream, Quebec, MultiMondes Editions, 2002, p.3.

* ⁵ Arnaud HAMON, an approach of the freedom of expression on Internet, Memory of Human right DEA and freedoms public, Paris, University of Paris X Nanterre, 2000, p. 8 and 9, on line on  : Juriscom.net < http://www.juriscom.net/uni/mem/14/presentation.htm > (site visited on March 12, 2004).

* ⁶ «  A study undertaken into 2003 to the United States by three researchers of Université of New Hampshire (Mitchell, Finkelhor and Wolak) on a national sample of 1.500 young people from 10 to 17 years highlights and illustrates the risks of involuntary exposure of these public to the contents in sexual matter on the Internet. According to results' of this work, a quarter of the participants, young regular users of the Internet, had been involuntarily exposed at least once with contents in sexual matter during the last year (...). In 32% of the cases, the questioned children had perceived images appearing of the people maintaining the sexual intercourse. In 7% of the cases, these images appeared of the violent scenes of sex. 73% of the raised cases of exposure had occurred during navigations on the Web, and 27% via electronic mails or of instantaneous messages, the study not considering other uses of the Internet. In Europe, a study undertaken on young users of the Internet within the framework of program SAFT (Safety, Awareness, Facts and Tools) in Sweden, in Norway, in Denmark, in Iceland and Ireland showed that 26 to 35% old questioned Net surfers from 9 to 16 years already had been accidentally exposed to contents violent ones or «horrible», and from 24 to 36% of them with contents of sexual or pornographic nature  »  : RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, the children of the Net  : The exposure of the minors to the contents prejudicial of the Internet (I), February 11, 2004, p.12, on line on  : French Documentation < http://lesrapports.ladocumentationfrancaise.fr/BRP/044000066/0000.pdf > (site visited on March 11, 2004).

* ⁷ Id., p.9.

* ⁸ Id., p.8 and 9  : «  The quantitative investigation Way Opinion/AOL from March 2002 tends to confirm these observations. It reveals that 61% of the old Net surfers from 8 to 18 years questioned surfaient daily, and that 76% of them reached the network at least three times per week. The principal uses which the young people from 8 to 18 years within the framework of this investigation quoted are: the communication (78%), by electronic mail in particular, the search for information for the school (72%), the search for information on the personal centers of interest (70%), the discovery of new sites (63%), the remote loading (from musical or video files, 56%), the participation in forums (55%), the plays in line (46%) and meets it new buddies (39%). 97% of the young questioned Net surfers considered tool Internet «useful» for «essential»  ».

* ⁹ Mr. MAY quoted by Thierry PIETTE-COUDOL and Andre BERTRAND, in «  The cyberspace  : hell and paradise  », (1995) the World, March 8, 1995, p.12.

* ¹⁰ See the text of Pierre TRUDEL, «  Lex Electronica  », in Charles-Albert MORAND (to dir.), right seized by universalization, Brussels, Bruylant Editions, collection International law, 2001, pp. 221-268, on page 228  ; Pierre TRUDEL, right of Internet to Canada, international Conference on the Internet and the right  : right European and compared Internet, Paris, 25- September 26, 2000, p.1, on line on  : < http://droit-internet-2000.univ-paris1.fr/dossier4/Pierre-Trudel.doc > (site visited on March 11, 2004).

* ¹¹ Thibault VERBIEST and Etienne WÉRY, Right of the Internet and the company of information  : European rights, Belgian and French, Brussels, ED. Larcier, 2001, p.19.

* ¹² RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, the children of the Net  : The exposure of the minors to the contents prejudicial of the Internet (I), COp cit., note 6.

* ¹³ See for more information for example the Report/ratio of P. TRUDEL, COp cit., note 10, p.19 and 20.