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

TITRATE I

THE RESPONSIBILITY FOR THE SERVICE PROVIDERS INTERNET : A MAJOR FACTOR OF REGULATION OF THE ILLICIT CONTENTS CIRCULATING ON INTERNET

The Internet network, undeniable factor of progress, was transformed into a daily instrument of communication in a certain number of hearths. Indeed, even if it develops in an uneven way between the countries, it became an important means of exchange of information and documents. The latter unceasingly increase on the network at the point to attack the Net surfer of more or less veracious and useful contents. This superabundance unfortunately brings many abuses which can generate certain damage. The victims being unable itself to obtain repair, initially decided to continue the PSI for the presence of these illicit contents circulating on Internet network. This concept of « illicit contents » thus has a considerable role in the setting concerned of the responsibility for these people receiving benefits. It thus necessary initially, to release a definition of the concept (Chapter I), for then being interested in the second place, on the diet of responsibility for the PSI (Chapter II).

CHAPTER 1

CONCEPT OF «ILLICIT CONTENTS» : A CONCEPT DIFFICULT TO DEFINE

The «illicit contents» on Internet circulate in an abundant and fast way. The Net surfer is thus constrained with being vigilant and criticizing information appearing there. These contents come from the whole world and can cover various aspects. For example, the first businesses on the matter showed that the attacks with the private life were the first illicit contents to be treated there. This term « illicit contents » consequently can, to cover a great number of intrigues, being able to lead to the constitution of a generic category of illicit behaviors likely to be discovered on Internet network. It will be appropriate initially, to try to release a definition of the concept of contents illicit (I) for then, to illustrate this concept for concrete examples in order to better encircle it (II).

Section I : A definition of the concept

Concept of « illicit contents » is used by the lawyers, the international texts and even national without no definition being given by it. That can appear surprising to also frequently use a term, without defining it. For the moment, the only certainty is that this concept has variable contents, which can raise certain difficulties as for its definition (§1). Moreover, this variability makes its field of application broad. A multitude of terms then appeared in order to contribute to the comprehension of this concept (§2).

Paragraph 1 : A concept with variable content

The concept of « illicit contents » is difficult to define because of the transnational character^14(*) of Internet network. Indeed, several legislations are implied. In spite of this problem, it is crucial to define this term in order to better include/understand how each country approaches it. However, before beginning any analysis, it should be specified that this concept is very vague and vague. Its field of application is consequently very fuzzy^15(*). This confusion can be explained several manners.

First of all, this term varies considerably from one country to another, which can explain this absence of definition in the international texts, European and national. In order to fill this gap, it seems necessary to define each term separately. We will treat on the one hand, of the word « contents » and in addition, of the word « illicit », in order to better seize the direction of them. Thus the word « contents » would be attached according to countries', with one or a combination of elements^16(*) such as the radiotelevision for Australia, the edition for New Zealand and the documents audio-visual for the United Kingdom. There is thus a true problem according to the category of media to which Internet is attached. This debate was well fed in France. Indeed, the question arose of knowing if Internet were to be qualified of audio-visual communication, press, telecommunication or contrary to private correspondence. The courts and the doctrines tried to clear up the things without reaching really that point. Thus there is a true controversy still today on this qualification even if Project LEN seems to want to put a term at it^17(*).

Then, the concept of « illicit contents » varies according to the legislative approach and policy which the countries adopt. In accordance with the orientation chosen, the contents to be repressed will be different. Indeed, Internet is considered by certain people as a space of not-right where all can be said and to be done. The authorities come to impose in the regulation of the network of the control and safety requirements which block this freedom, declared for some like absolute. Then be established a conflict on the base of the regulation of Internet which the State must adopt. The field of application will be different and more or less restrictive according to whether this regulation is rather based on the safety or the freedom of expression. Indeed, by choosing a legislation based mainly on safety thus, in the detriment of the freedom of expression, the countries define the illicit contents in manner stricto-sensu. The infringements are thus determined in a strict and literal way by leaving little place to interpretation. On the other hand, if they adopt a more libertarian vision, the laws repressing these contents will be more flexible. The orientations legislative and political, different from one country to another, have consequently a considerable impact on the concept, which does not facilitate the establishment of a minimum of common contents. Indeed, contents can be illicit in a country without inevitably being it in another. However, to give a significance common, general, even international to this concept, could be beneficial to allow a true international co-operation between the countries. This in order to efficiently fight the presence of these illicit contents on Internet network. However, one should not lose sight of the fact that while giving a direction common to this concept, perverse effects can emerge as for the good course of this co-operation. According to whether the definition appears broad or restrictive, the co-operation will be more or less effective. The States must thus get along on a definition at the international level broadest possible, in order to release from the criteria to determine the contents which should make it possible to apprehend in a neutral way of the contents considered to be illicit^18(*).

This possibility seems rather difficult to set up because of the evolutionary character of the term « illicit »^19(*). Indeed, this last returns to complex concepts such as morals, the moralities and the law and order. If we are interested in the law and order, we can already notice that we are confronted with an extremely variable concept^20(*) which evolves/moves considerably from one country to another. The same applies to the morals^21(*) and the moralities^22(*), which are concepts taking of account the sociocultural changes, economic, moral and philosophical of a given civil company. Thus the ideologies, the policies and the religions take into consideration^23(*). These last vary in time and space. These concepts which are directly connected to the statutory values, thus pose a serious problem with the definition of « illicit contents ». Indeed, how can one reconcile all the designs of the countries ? How to determine what is or not moral ? That proves to be impossible bus what constitutes a crime in a country is not it necessarily in another. Consequently, the States should initially get along on the definition of morals and then, of what must be or not reprehensible. It is necessary to find a definition heterogeneous of the words « offense » and « morals » because of the transnationality of Internet network^24(*). To arrive there, the States will have to put forward a certain number of common elements between them, so that there is a reciprocity as the international law preaches it^25(*).

Consequently, the States must make bilateral and multilateral provisions, on an international scale, to treat illicit communications on the world networks. These international agreements must define the concepts so that the field of application is broadest possible in order to cover the greatest number of intrigues suitable for be met in the world. The countries considered in our study have ideologies rather similar or at least rather close. Indeed, Canada and France, even Europe as a whole, have a design of morality and rather similar illiceity, even if the Anglo-Saxon countries have a tendency to be much more liberal on certain points^26(*). These small differences, in addition, will make it possible some Net surfers to carry on their illicit activities in all impunity in certain countries become of « informational paradises »^27(*).

The European Community already started to set up a co-operation at the level of justice^28(*) and police mutual aid^29(*). This regrouping could be done thanks to the agreement of the Member States on the loss of part of their sovereignty to the profit of the European Community. Nevertheless, there are disparities of designs to the center even of Europe, which proves the difficulty in setting up a common legislation on the network. The pornography for example, is prohibited in Ireland and completely free in Sweden. How one in this context can, to adopt single standards and commun runs with all, in matters as sensitive as the public morality, human dignity or the protection of the minors ? However, the legislations, as a whole, seem to want to cure the phenomena of the illicit contents effectively circulating on Internet network.

This absence of definition in the legal texts leads us to seek the direction first concept of « illicit contents ». It is about the contents of information, a document, a data or an electronic site being able to be an exploitable resource^30(*), which is not licit and which is defended by morals or the law^31(*). This approach has a rather broad field of application making it possible to include a number impressing of infringements. Of course, this definition is only one example simplified of the scale of work to make to find a significance uniform with this concept, in order to be able to repress the largest range of illicit contents diffused on Internet.

The concept of « illicit contents » is thus attached to many random concepts such as the moralities, morals or the law and order. This is why, the texts prefer to use more precise terms in order to indicate reprehensible actions in a given country. Their use can return the development of a uniform definition of the complex concept. It is important to clear up the situation and to expose the other concepts.

* ¹⁴ Concept of «  transnational  » says itself what further goes than the national framework, of what relates to several nations  ; on line on  : Québécois office of the French language < http://www.oqlf.gouv.qc.ca/ > (site visited on March 12, 2004).

* ¹⁵ Cyril ROJINSKY, Community approach of the responsibility for the actors of the Internet, Paris, October 11, 2000, on line on  : Juriscom.net < http://www.juriscom.net/pro/2/resp20001011.htm > (site visited on March 12, 2004).

* ¹⁶ For Heather DE SANTIS (To fight hatred on the Internet  : international comparative study of the political approaches, strategic Planning and coordination of the policies, Hull, Ministry for the Canadian Inheritance, January 1998, p 9), «  Each State defines the contents «  illicit  » according to the approach which it adopts with respect to heinous propaganda. For example, Germany adopted strict laws in connection with the prohibited contents (symbols Nazis, incentive with hatred), while the laws of New Zealand are rather vague (hostility or ill will with regard to people)  ». It thus does not seem y to have any consensus on the term «  contents  ».

* ¹⁷ The French Bill (n°528 and n°991) entitled for confidence in the numerical economy (quoted hereafter «  Project LEN  ») (See on the site of the French French National Assembly to the following address  : < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp >) states in its article first which it attaches telecommunication on line to the field of the audio-visual communication governed by the Law of 1 August 2000 amending the law of September 30, 1986 relating to the freedom of communication (OJ August 2, 2000, N  177)  ; See also on the debate  : Christian PAUL, Of the right and freedoms on Internet  : Report/ratio with the Prime Minister, Paris, French Documentation, 2001, p 70  ; and the Report of A. HAMON, COp cit., note 5, p. 22 and suiv.

* ¹⁸ Recommendation Rec (2001) 8 of the Committee of the Ministers to the Member States on the self-regulation of the cyber-contents, (self-regulation and the protection of the users against the contents illicit or prejudicial diffused on the new services of communications and information), adopted on September 5, 2001 by the Council of Ministers, on line on  : The Council of Europe < http://cm.coe.int/ta/rec/2001/f2001r8.htm > (site visited on March 13, 2003)  : The Committee of the Ministers of Europe encourages the Member States to define a whole of descriptors of contents which should allow a neutral certification of the contents.

* ¹⁹ Illiceity  : in general right, character of what is not allowed, of what is contrary with a text, the law and order, the moralities  ; R. legal GUILLIEN and Jean VINCENT, Terms, lexicon, 10th edition, Paris, Dalloz, 1995, p 290.

* ²⁰ Caroline OUELLET, Who makes the law on Internet  : Censure or freedom, rights and responsibilities, Quebec, the presses of the University Laval, 1998, p 98.

* ²¹ Moral  : who relates to manners, the practices and especially the codes of conduct allowed and practiced in a company  ; who is in conformity with manners, with morals and who is allowed like such  ; Paul ROBERT, the Large Robert of the French language  : alphabetical and analogical dictionary of the French language, Paris, Edition Dictionary the Robert, 2001.

* ²² Moralities  : together rules imposed by social morals  ; Paul ROBERT, the new Petit Robert  : alphabetical and analogical dictionary of the French language, text altered and amplified under the direction of Josette REY-DEBOYE and Alain REY, Nouv ED duPetitRobert Paris DictionnairesLeRobert 1995, p 1423.

* ²³ C. OUELLET, COp cit., note 20, p. 99.

* ²⁴ H. SANTIS, COp cit., note 16, p 16.

* ²⁵ This reciprocity is often lacking in particular in the recognition of the judgments abroad, like that was the case for the business Yahoo (UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, TGI Paris, ref., May 22, 2000, Com. Com. électr.2000 Com. n°92, J-Chr note. GALLOUX or on line  : Review of the right of information technologies < http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm > (site visited on March 13, 2003).

* ²⁶ Indeed, the United States for example, has a very broad design of the freedom of expression and Canada also has a broad design, different from the European design, much more strict. This difference will be developed further in our study.

* ²⁷ Expression borrowed from Pierre MACKAY, problems of the freedom of expression and the censure in the information flow dematerialized on the info highways, Communications with the Jacques-Cartier Talks, Lyon, December 1995, in lines on  : < http://www.juris.uqam.ca/profs/mackayp/liberte.html > (site visited on March 12, 2004).

* ²⁸ Europe set up Eurojust, by a Council Decision of 28 February 2002 instituting Eurojust in order to reinforce the fight against the serious forms of criminality (OJ C.E n°L 63 of the 06/03/2002). This body was instituted in order to improve the legal co-operation in order to fight effectively against the serious forms of criminality; to facilitate the coordination of the actions of investigation and the continuations covering the territory of several Member States.

* ²⁹ Europe drew up the Europol Convention, which is the European Office of police force, in order to improve the police co-operation between the Member States to fight against terrorism, the illicit traffic of drugs and the other serious forms of international criminality. This Convention was installation by an Act of the Council, of July 26, 1995, bearing establishment of convention creating European Office of police force (Europol Convention) (OJ C.E n°C 316 of the 27/11/1995).

* ³⁰ Definition of «  contents  » and «  contents Internet  » taken on the Québécois Office of the French language, on line on  : < http://www.oqlf.gouv.qc.ca/ > (site visited on March 12, 2004).

* ³¹ P. ROBERT, COp cit., note 21.