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

B) Appearance of the Canadian regulation

Canada, just like France, were confronted with realities of Internet and the legislators had to intervene to try to clarify the difficulties encountered and caused by the massive presence of illicit contents circulating on the network. Thus the federal Government worked out a law inspired of various Anglo-Saxon models already existing (1), whereas the province of Quebec preferred to follow the European movement (2).

1) The federal legislation : a concerted solution

Canada is a federation where competences are shared between on the one hand, the federal State and, on the other hand, its various provinces. The Conference for the harmonization of the laws in Canada adopted in 1999 a uniform Law on the electronic trade (LUCE)^243(*). The latter takes as a starting point the the standard Law of the CNUDCI on the electronic trade^244(*) of 1996^245(*). It takes again these provisions mainly and approaches philosophy minimalist^246(*). This one recommends that one should not take account of technologies and thus to work out neutral legal rules which would be thus applicable some that is to say the support used.

The various Canadian provinces, in a preoccupation of harmonization and a coordination of the approaches, wrote all their legislation while following the provisions relating to the electronic trade of the LUCE. For example, Electronic Act Transactions^247(*) of British Columbia and the Law of 2000 on the electronic trade (LCE 2000)^248(*) of Ontario were strongly inspired some. This will to standardize the laws on the electronic trade thus will allow its national and international development^249(*). However, it should be specified that no provision treats responsibility for the PSI. These laws were installation to make the promotion of this trade. Indeed, the LCE 2000 is initially intended to make so that the electronic contracts, documents and signatures have the same legal effects as those on paper medium ; in second place, to adopt national and international standards for the right of the electronic trade ; in third place, not to oblige anybody to use or to accept electronic communications and lastly, to prescribe the use of no technology particularly^250(*).

In the absence of specific provisions relating to the responsibility for the PSI, we can deduce from it that the common right has vocation to apply in the event of litigation between a PSI and a Net surfer victim of the presence of illicit contents. Moreover, as we already could expose it, of the particular modifications relating to Internet network were carried out in certain legislations in force. For example, the criminal Code inserted articles treating in particular youthful pornography on Internet^251(*).

The laws of the various Canadian provinces, that is Manitoba, British Columbia or Ontario, all are organized on the same model with only some minor divergences. However, Quebec adopted a specific approach dissociating other provinces completely.

* ²⁴³ CONFERENCE FOR THE HARMONIZATION OF THE LAWS IN CANADA, Comments of the uniform Law on the electronic trade, 1999, on line on  : < http://www.law.ualberta.ca/alri/ulc/findex.htm > (site visited on March 13, 2004).

* ²⁴⁴ Standard law of the CNUDCI on the electronic trade, on line on  : < http://www.uncitral.org/french/texts/electcom/ml-ecomm-f.htm > (site visited on March 13, 2004).

* ²⁴⁵ The standard Law inspired by many legislations such as the United States, Australia and the United Kingdom.

* ²⁴⁶ «  The minimalism answers at the speed of the evolution of technology  ; the more one prescribes the means in detail, the more one risks an obsolete law before his passage  : Matter of John D. GREGORY, the standard Law of the United Nations on the electronic trade  : some essential questions, draw from the article of Serge KABLAN, Regulation of information technologies in Quebec  : the philosophy of the bill 161 compared to the Canadian right  », n°1, flight 7, Lex Electronica, on line on  : < http://www.lex-electronica.org/articles/v7-1/Kablan.htm > (site visited on March 13, 2004).

* ²⁴⁷ Electronic Act Transactions, S.B.C. 2001, c.10.

* ²⁴⁸ Law of 2000 on the electronic trade, L.O. 2000, C. 17.

* ²⁴⁹ Sunny HANDA, Claude MARSEILLES and Martin SHEEHAN, E-trade legislation and materials in Canada  : Laws on the electronic trade in Canada and documents related, Ontario, Butterworths Editions, 2002, foreword statement.

* ²⁵⁰ Id., p.135.

* ²⁵¹ Cf notes 113.